How can age discrimination be proved?

Prima Facie Case of Age Discrimination

In order to prove an age discrimination case, an employee must establish that:  (1) he or she is in the protected age class; (2) his or her job performance was satisfactory; (3) adverse job action was taken against him or her; and (4) similarly situated substantially younger employees were treated more favorably.

Proffered Reason

If the employee establishes a prima facie case of age discrimination, the employer may come forward with a legitimate, non-discriminatory reason for the challenged job action.

Pretext for Age Discrimination

If the employer proffers a reason for the employment decision in question, the employee must establish that the proffered reason is just pretext for age discrimination; and that intentional age discrimination was the real reason for the employment decision.

Similarly Situated Substantially Younger Employees

The younger comparable employee does not have to be under age 40; he or she may also be in the protected age class.  The comparable, however, must be substantially younger that the employee who is alleging age discrimination.  For instance, a 70-year-old employee who is replaced by a 50-year-old employee may have an age discrimination claim.  On the other hand, a 41-year-old employee who is replaced by a 39-year-old employee would have difficulty establishing an age discrimination claim, even though the comparable employee is not in the protected age class.

Reduction-in-Force Cases

An employer who eliminates an employee through a reduction-in-force is not insulated from liability for age discrimination or other employment discrimination.  The employer’s process of selecting which employees to lay off and which employees to retain may be subject to statistical scrutiny.  An employee may still have a viable employment discrimination claim if he or she was laid off in a rif due to a protected characteristic, such as the employee’s age, while similarly situated employees without that characteristic were retained.  In a reduction-in-force age discrimination case, an employee is not required to prove that he or she was directly replaced by a substantially younger employee, only that substantially younger employees were treated more favorably than the employee in the reduction-in-force.