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Age Discrimination Q & A

Q: Am I protected by federal and Florida law against age discrimination?

A: The Age Discrimination in Employment Act, which is federal law, and the Florida Civil Rights Act, which is Florida law, prohibit employers from discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment on the basis of age. The protection against age discrimination applies to all employees and applicants for employment.

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Q: Is the Florida Civil Rights Act interpreted in the same manner as the Age Discrimination in Employment Act?

A: Because the Florida Civil Rights Act is patterned after the Age Discrimination in Employment Act, courts accord the Florida Civil Rights Act the same construction as the Age Discrimination in Employment Act. This means the Age Discrimination in Employment Act and the Florida Civil Rights Act are interpreted as if they were one.

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Q: What age must I have reached in order to be protected against age discrimination?

A: The Age Discrimination in Employment Act and Florida Civil Rights Act prohibit discrimination on the basis of age against individuals who are at least 40 years of age. The Age Discrimination in Employment Act and Florida Civil Rights Act do not prohibit discrimination on the basis of age against individuals who are not at least forty years of age. In other words, employees who are younger than forty are outside the class of older workers as defined by the Age Discrimination in Employment Act and Florida Civil Rights Act.

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Q: What is the purpose of the Age Discrimination in Employment Act?

A: In Hazen Paper Co. v. Biggins, 507 U.S. 613 (1993), the U.S. Supreme Court explained that Congress’ passage of the Age Discrimination in Employment Act “was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.” Thus, a fundamental purpose of the Age Discrimination in Employment Act, the Hazen Paper Court observed, is to ensure that employers “evaluate older employees on their merits and not their age.”

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Q: What is direct evidence of age discrimination?

A: Generally, courts have defined direct evidence of age discrimination as evidence which proves the existence of a discriminatory motive without inference or presumption. Stated another way, direct evidence of age discrimination is a statement by an employee who was involved in the decision which constitutes “smoking gun” evidence that the challenged employment decision was made because of the employee’s age. For example, a statement by a person involved in the termination decision that the employee was fired because he or she is “too old” or because the company “needs younger employees” is direct evidence that the employee was fired on the basis of age.

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Q: Do I need direct evidence of age discrimination in order to prove my case?

A: Direct evidence of discrimination rarely exists in age discrimination cases. As observed by the U.S. First Circuit Court of Appeals in Hodgens v. General Dynamics Corp., 144 F.3d 151 (1st Cir. 1998), ” ‘smoking gun’ evidence is, of course, not required in order to prove discrimination.” Because direct evidence of discrimination is often unavailable or difficult to acquire, age discrimination cases are almost always proven through circumstantial evidence.

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Q: What is a prima facie case of age discrimination?

A: In the absence of direct evidence of age discrimination, employees must prove they were discriminated against on the basis of age through circumstantial evidence. When attempting to prove age discrimination through circumstantial evidence, an employee is required to establish a prima facie case of age discrimination. A valid prima facie case creates a presumption that age discrimination has occurred. Courts have uniformly determined that the burden of establishing a prima facie case of age discrimination is minimal and easily made.

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Q: What must I show in order to establish a prima facie case of age discrimination?

A: Courts have consistently held that there are a number of ways of establishing a prima facie case of age discrimination. One method available for establishing a prima facie case of age discrimination is for an employee to show that: (1) he or she is at least forty years of age; (2) he or she was qualified for the job or job benefit at issue; (3) he or she was subjected to an adverse employment action, such as suspension without pay, failure to promote, reduction in pay, or termination; and (4) he or she was replaced by someone who is younger than forty or was treated differently or less favorably from a younger employee.

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Q: Must I be replaced by someone who is under the age of 40 in order to have a case for discriminatory discharge on the basis of age?

A: An employee who is younger than forty is outside the class of older workers as defined by the Age Discrimination in Employment Act. In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the U.S. Supreme Court held that an employee’s replacement need not be under forty years of age in order for the employee to make out a prima facie case of age discrimination. Instead, the O’Connor Court held that an employee can establish a prima facie case by showing that he or she was replaced by someone who is substantially younger. However, even if an employee is not replaced by someone who is younger than forty or substantially younger, an employee can still make out a prima facie case of age discrimination in other ways. For example, the employee can show that he or was treated differently or less favorably from younger employees. Likewise, the employee can use any type of evidence from which age discrimination can be inferred in order to satisfy the prima facie case.

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Q: Under what circumstances is the person who replaced me considered substantially younger than me?

A: Federal courts are split as to what age differences between the terminated employee and the replacement employee qualify as substantially younger. When there is no other evidence from which age discrimination can be inferred, the majority of federal courts have held that age differences of less than ten years are not significant enough to qualify as substantially younger. However, the U.S. Eleventh Circuit Court of Appeals, which interprets and makes controlling federal law for Florida, has held that an age difference of three years qualifies as substantially younger. In other words, under Eleventh Circuit precedent which governs federal law in Florida, a forty-two year is substantially younger than a forty-five year old.

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Q: What is the most common form of age discrimination in the workplace?

A: In most age discrimination cases, employees prove age discrimination by showing that they were treated differently or less favorably from younger employees. For example, the employer discharges an older employee for alleged performance deficiencies, but does not terminate younger employees with the same or even worse performance deficiencies. In other words, an older employee is attempting to prove that he or she was singled out for different and less favorable treatment on the basis of age. The differences in treatment are a form of circumstantial evidence used to prove the employer’s discriminatory motive and are sufficient in most cases, standing alone, to prove age discrimination.

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Q: Is evidence regarding differences in treatment limited to the reason given for the challenged employment decision?

A: In proving age discrimination, employees are not limited to comparing their treatment to the treatment of younger employees with respect to the reason for the challenged employment decision. Rather, the determination of whether an employee’s age actually motivated the challenged employment decision is based on the totality of the evidence. As explained by the court in Hollander v. American Cyanamid Co., 895 F.2d 80 (2d Cir. 1990), “[b]ecause employers rarely leave a paper trial—or ‘smoking gun’—attesting to discriminatory intent, [age discrimination claimants] often must build their cases from pieces of circumstantial evidence which cumulatively undercut the credibility of the various explanations offered by the employer.” Thus, evidence showing that you were treated differently or less favorably from younger employees with respect to other aspects of your employment can be used to prove an age discrimination claim. For example, showing that you were treated differently or less favorably from younger employees with respect to discipline, performance evaluations, promotion, training, or hours of work are pieces of circumstantial evidence that can be used to prove that the challenged employment decision was made because of your age.

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Q: Other than treating me less favorably from younger employees, what are some other circumstances that may reflect age discrimination?

A: An individual claiming age discrimination can rely on a broad array of evidence to prove his or her case. No single type of evidence is required to prove age discrimination. The different types of evidence that can be used to prove age discrimination include: (1) the reason given by the employer for the challenged employment decision is a lie, a phony reason, or has no basis in fact; (2) the employer violated its own company policy when making the challenged employment decision; (3) the employer selectively enforced a company work rule or policy against the employee when making the challenged employment decision; (4) suspicious timing surrounding the challenged employment decision; (5) the employer failed to get the employee’s “side of the story” before making the challenged employment decision; (6) the employer gave different reasons at different times for the challenged employment decision; (7) the employer refused to give the employee a reason for the challenged employment decision; and (8) the employer discriminated against other employees on the basis of age.

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Q: Is my employer allowed to make employment decisions on the basis of age stereotypes?

A: In harmony with the purpose of the Age Discrimination in Employment Act as characterized by the Hazen Paper Court, employers are forbidden from making employment decisions on the basis of age stereotypes. When an employer makes an employment decision on the basis of an age stereotype, the employer has discriminated against the employee on the basis of age in violation of the Age Discrimination in Employment Act and Florida Civil Rights Act.

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Q: What is the legal significance of remarks reflecting age stereotypes?

A: Because the Age Discrimination in Employment Act prohibits employment decisions on the basis of age stereotypes, remarks reflecting age stereotypes made by managers or supervisors are evidence of age discrimination. When managers or supervisors make age stereotyping remarks, the employee claiming age discrimination can use the remarks to prove that his or her age actually played a role in the employer’s decision-making process. Remarks reflecting age stereotypes can be used to prove age discrimination when they are about the employee claiming age discrimination or about other older employees in the workplace. In other words, remarks reflecting age stereotypes do not have to be about the employee claiming age discrimination in order for the remarks to be relevant and used as evidence to prove age discrimination.

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Q: What are some examples of age stereotyping remarks?

A: Age stereotyping remarks generally refer to an employee’s age indirectly and reflect negative assumptions or beliefs associated with age. As the Hazen Paper Court observed, “[i]t is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age.” Examples of remarks reflecting age stereotypes about an employee include: telling the employee you move in “slow motion,” you are not “proactive” or “aggressive,” you are “inflexible” or “not adaptable,” you are unable to “adapt” to change,” you cannot “adjust to modern ways,” and you are not “a forward enough thinker.” Examples of remarks reflecting age stereotypes about older employees include: older employees are not “committed” or “dedicated” to their job, older employees are only interested in earning “short-term money,” older employees are not “innovative” or “creative,” older employees are not “energetic” or “ambitious,” and older employees do not “fit” the company’s image

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Q: Can my employer ask me about when I plan to retire?

A: Employers are not prohibited from asking employees about when they plan to retire or whether they are considering retirement. However, when there is other evidence of age discrimination against an employee, such as age stereotype remarks or less favorable treatment from younger employees, inquiries about the employee’s retirement plans do constitute some evidence that an employment decision was based on age. Moreover, when an employer repeatedly makes inquiries into an employee’s retirement plans, the inquiries take the form of harassment and constitute some evidence that age actually motivated the employer’s decision.

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Q: Can my employer refuse to promote or terminate me because I am retirement-eligible?

A: Generally, employers are permitted to use an employee’s retirement eligibility as a basis for employment decisions. However, the employer’s use of an employee’s retirement eligibility must be wholly independent from age and age stereotyping. For example, if an employer refuses to promote or terminates an employee with the explanation that the employee is retirement-eligible and may not be committed to the job, the decision is not wholly independent of age because it is based on age stereotyping that the Age Discrimination in Employment Act prohibits. In other words, the employer is assuming that the employee is uncommitted to the position because his or her age makes him retirement-eligible.

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Q: Can my employer force me to retire under a mandatory retirement policy?

A: Under the Age Discrimination in Employment Act, employers are permitted to maintain a mandatory retirement policy. However, in order to legally justify a mandatory retirement policy, employers must satisfy the bona fide occupational qualification defense (BFOQ). The U.S. Supreme Court has described the BFOQ defense as a very narrow exception to the Age Discrimination in Employment Act’s prohibition against age discrimination. Under Supreme Court precedent and federal case law applying that precedent, the BFOQ defense only applies in exceptional circumstances. Consequently, an employer’s mandatory retirement policy is very rarely lawful.

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Q: Can my employer terminate me because I make too much money?

A: Generally, the Age Discrimination in Employment Act does not prohibit employers from using an employee’s compensation or salary as a basis for employment decisions. However, the Age Discrimination in Employment Act mandates that the employer’s use of an employee’s compensation must be wholly independent from age and age stereotyping. For example, if an employer terminates an employee with the explanation that it needs someone younger who it can pay less, the decision is not wholly independent of age because the employee’s compensation is not divorced from age. In other words, the employer is using the employee’s compensation as a proxy for age in order to discriminate against the employee.

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Q: Can my employer terminate me because of my seniority or length of employment?

A: Generally, employers are allowed to use an employee’s seniority or length of employment as a basis for employment decisions. However, the employer’s use of an employee’s seniority or length of employment must be wholly independent from age and age stereotyping to be permissible under the Age Discrimination in Employment Act. For example, if an employer terminates an employee with the explanation that the employee had been around too long and is too old, the decision is not wholly independent of age because the employee’s length of employment is directly tied to the employee’s age. In other words, the decision to fire the employee is motivated by the employee’s age and not his or her length of employment.

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Q: Am I protected against harassment because of my age?

A: Harassment on the basis of age is a form of age discrimination. Employees are protected against harassment on the basis of age which is sufficiently severe or pervasive to alter the employee’s conditions of employment and create a hostile work environment. Age-based harassment claims are analyzed just like claims of sexual harassment. Instead of being harassed because of sex as in a sexual harassment case, an employee is being harassed because of age in an age harassment case. Generally, age-based harassment takes the form of derogatory or demeaning age-related remarks, insults, or jokes by co-employees, supervisors, or managers.

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Q: Am I protected against retaliation for complaining about age discrimination?

A: Under the Age Discrimination in Employment Act and Florida Civil Rights Act, employees are protected from retaliation when they complain about age discrimination, whether against themselves or other employees, in the workplace. Employees are also protected from retaliation when they file a charge of discrimination alleging age discrimination with the U.S. Equal Employment Opportunity Commission.

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Q: Do You Have More Questions Or Believe You Have A Case?

A: If you have more questions or believe that you have an age discrimination case, please contact our office to speak with an employment lawyer. You will never have to pay to speak with an employment law attorney here. We can help you take action to protect and vindicate your employee rights. Located in Ocala, Florida and representing employees throughout Central Florida, we take employment discrimination and retaliation cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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