Proving You Weren't Hired Because of Age Discrimination
Recently there was the news that the EEOC has sued the restaurant chain Seasons 52 for not hiring people over 40. So you weren't hired for the job and suspect age discrimination. But how do you prove it? Here are three ways you can prove you weren't hired (or promoted) due to age discrimination:
1. Direct evidence:
The interviewer made comments about your age indicating bias.
- Maybe they asked, "Aren't you getting close to retirement?" or "How much longer do you plan to work?"
- Or your age wasn't disclosed in your resume but when they see you they ask, "How old are you?" or "What year did you graduate?"
- Or maybe they said something really dumb like what EEOC happened at the restaurant chain Seasons 52: "Unsuccessful applicants across the nation were given varying explanations for their failure to be hired, including 'too experienced,' the restaurant's desire for a youthful image, looking for 'fresh' employees and telling applicants that Seasons 52 'wasn't looking for old white guys.'' While direct evidence is rare, it's great stuff.
2. Disparate treatment:
You are clearly the best qualified candidate. The ad calls for a Master's Degree in Finance and you have a Doctorate in Finance. The person hired has a B.A. in Psychology. If you can prove that you were the more qualified candidate and that the person who was hired was younger, then you have what's called a prima facie case of age discrimination. IT would be up to the employer to prove that they had a legitimate reason other than age. That doesn't mean they couldn't prove there was another reason besides age discrimination, but it's certainly enough to talk to a lawyer about.
3. Disparate impact:
Even if you don't have evidence that the employer intended to discriminate against you based on age, there could be hiring requirements that have a disparate impact on older employees and that don't have a real relationship to the job. For instance, if you're applying for a legal secretary position, a requirement that you have 20-20 vision without glasses or be able to run a mile would have a disparate impact on older employees (and the disabled, but I won't get into that). The requirement wouldn't be justifiable by any business necessity. However, if the requirement is that you be able to type 60 words a minute, that could be a legitimate job prerequisite.
If you can prove any of these three things, then it's time to either file a charge of discrimination with EEOC (yes, you can do this unrepresented, just like you can file a lawsuit pro se or do surgery on yourself if you want), which is a prerequisite to filing a lawsuit for age discrimination or, better yet, to contact an employee-side employment lawyer in your state about your rights.
I should note that the "legitimate reason" your employer has doesn't need to be a great reason for a judge or jury to find that they aren't liable. Discrimination cases are tough to prove, but you shouldn't sit and wonder what could have been if you think the employer broke the law. Talk to a lawyer and see if it's something worth pursuing.
For more about age discrimination at work, check out my columns 9 Signs Of Age Discrimination and 6 Ways To Prove You're A Victim Of Age Discrimination.
Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase. Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.