Age Discrimination Can Still Occur When A Replacement Is Over 40

The Age Discrimination in Employment Act (“ADEA”), which is federal law, and the Florida Civil Rights Act (“FCRA”), which is Florida law, prohibit an employer from discriminating against an individual in employment practices because of such individual’s age. Courts have determined that the legal standards which govern age claims under the ADEA also govern age claims under the FCRA. The protected age class under the ADEA and FCRA includes individuals over the age of 40. In other words, an individual must be at least 40 years of age in order to be protected against age discrimination by the ADEA and FCRA.

In evaluating age discrimination cases when the employee alleges that he or she was terminated because of age, courts often focus on the age of the person who replaced the terminated employee. Courts have reasoned that an employer who discriminates on the basis of age is unlikely to replace an older employee with another older employee. Rather, courts have explained, an employer who discriminates on the basis of age is more likely to replace an older employee with a younger employee. As a result, courts have determined when an employer replaces a terminated employee who is at least 40 years of age with a substantially younger employee, an inference can be drawn that the termination decision was based on age. This principle raises the issue as to what is “substantially younger” when considering the age difference between the terminated employee and his or her replacement.

The U.S. Supreme Court in O’Connor v. Consolidated Coin Caterers Corp. recognized that the vast majority of age discrimination claims come from older employees. Many older employees who have been the victim of age discrimination believe they do not have legal grounds to bring an age discrimination lawsuit because the person who replaced them is over 40 years of age or is also an older employee. However, the Eleventh Circuit Court of Appeals (“Eleventh Circuit”), which is the federal appellate court with jurisdiction over Florida, has held that age disparities between the terminated employee and his or her replacement of as little of three years can support an inference of age discrimination. For example, the Eleventh Circuit held in Carter v. City of Miami that the replacement of a 49-year old woman claiming that she was fired on the basis of age with a 46-year old woman was sufficient to support an inference of age discrimination. In finding a three-year age difference to be sufficient to raise an inference of discrimination, the Eleventh Circuit reasoned that “[s]eldom will a sixty-year old be replaced by a person in the twenties[.]” Under Eleventh Circuit precedent therefore, a 65-year old employee who is replaced by a 62-year old employee may still have a meritorious age discrimination claim.

We have extensive experience representing employees who have been the subjected to age discrimination and other types of discrimination in the workplace. If you have been subjected to age discrimination or have any questions regarding age discrimination in the workplace, please contact our office for a free consultation.