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Employment Blog

Age Discrimination Cases Can be Easy to Prove

Authored by Dean R. Dietrich
Posted on April 15, 2014
Filed under Employment

Several recent stories have talked about huge layoffs because of a loss of federal contracts and a decline in available work. Companies are looking at large layoffs to reduce costs and survive the cutbacks in revenue from the loss of contracts. A reduction in the workforce can open the door for age discrimination claims if older employees are selected for layoff and younger employees remain employed.

A recent decision by the Seventh Circuit Court of Appeals (which includes Wisconsin) again clarified the methods by which an employee can prove a claim of age discrimination. The Court briefly summarized the methods for proving a claim when it wrote the following:

The direct method can be proved through direct evidence or circumstantial evidence of discrimination. Direct evidence required that the employer admit its discriminatory intent (e.g., the "smoking gun" case).

The far more common case relies on circumstantial evidence, which allows the trier of fact to infer intentional discrimination by the decision maker. Circumstantial evidence typically includes

(1) suspicious timing, ambiguous oral or written statements, or behavior toward or comments directed at other employees in the protected group;

(2) evidence, whether or not rigorously statistical, that similarly situated employees outside the protected class received systematically better treatment; or

(3) evidence that the employee was qualified for the job in question but was passed over in favor of a person outside the protected class, and the employer's reason is a pretext for discrimination.

Circumstantial evidence must point directly to a discriminatory reason for the employer's action.

It is good to remember an age discrimination claim can be proven by one of two methods. The more common method is proof based on circumstantial evidence of discrimination. Employers must be very careful to document their decisions when reducing the workforce to show the decision was not based upon age of the employee but rather based on the needs of the company and the type of work performed by different employees in the workforce.