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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog

Proving Age Discrimination By Showing Younger Employees Were Treated Better

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The Age Discrimination in Employment Act (ADEA), which is federal law, prohibits employers from discriminating against employees on the basis of age.  Having represented employees victimized by age discrimination for almost twenty years, our Central Florida age discrimination attorneys have learned that employers often terminate older employees for behavior they usually tolerate from younger employees.  As the U.S. Seventh Circuit Court of Appeals observed in Graefenhain v. Pabst Brewing Co., 827 F.2d 13 (7th Cir. 1987), the U.S. Congress enacted the ADEA “because many employers or younger business executives act as if they believe there are good business reasons for discriminating against older employees.”

When an employer treats an older employee more severely than younger employees who engage in comparable behavior, courts have consistently held the differences in treatment are evidence that the employer’s stated reasons for the challenged employment decision are a pretext for age discrimination.  The decision by the U.S. Ninth Circuit Court of Appeals in Earl v. Nielsen Media Research, 658 F.3d 1108 (9th Cir. 2011) is instructive in showing that an employer’s more favorable treatment of younger employees can be sufficient, standing alone, to prove that the challenged employment decision was based on the aggrieved employee’s age. 

Older Employee, Unlike Younger Employees, Was Fired

In Earl, Christine Earl (Earl) claimed that her former employer, Nielsen Media Research, Inc. (Nielsen), unlawfully terminated her employment on the basis of age.  Earl worked for Nielsen as a recruiter.  In this position, Nielsen was responsible for recruiting households in order to monitor their television viewing habits for Nielsen. 

During Earl’s employment, Nielsen used two separate levels of disciplinary action plans for employees.  One disciplinary action plan was a developmental improvement plan.  The purpose of the developmental improvement plan was to notify an employee that his or her performance fell below company standards.  Because of performance issues, Nielson placed Earl on a developmental improvement plan.  The other disciplinary action plan was a performance improvement plan.   The performance improvement plan was considered more serious and informed the employee that failure to meet expectations “may result in further disciplinary action up to and including termination.”  Earl was never subjected to a performance improvement plan.

Nielsen terminated Earl’s employment after she made a mistake entering a customer’s address into a computer.  Earl was fifty-nine years old when she was fired.  Although Earl had never been subjected to a performance improvement plan, many recruiters in their 30’s and 40’s were not fired even though they had been placed on a performance improvement plan.  As a result, Nielsen afforded younger employees with similar, if not worse, work histories more lenient treatment.

In the months before and after Earl’s termination, Nielsen hired five new recruiters for her region.  Four of the new recruiters were in their 20’s and one was in his early 30’s.  One of the new recruiters filled the position held by Earl.  Nielsen paid the newly hired recruiters a salary less than half of Earl’s salary.  The trial court dismissed Earls’ age discrimination claim.  On appeal, the Ninth Circuit reversed the trial court’s decision and reinstated Earl’s age discrimination claim.

Employer Treated Younger Employees More Favorably

  At the outset of its opinion, the Ninth Circuit explained that an employee claiming age discrimination may demonstrate that the employer’s proffered reason for the challenged employment decision was a pretext for age discrimination by showing that the employer treated younger employees “more favorably.”  Applying this principle to the facts, the appellate court found that Earl presented evidence that Nielson “did not terminate—and in one instance may not have even disciplined—younger recruiters in their 30’s and 40’s when those recruiters violated similar Nielsen policies.”  Nielsen’s more lenient treatment of younger recruiters, the appellate court concluded, was evidence that Earl’s age was the real reason for the decision to terminate her employment.  Consequently, the Ninth Circuit ordered a jury trial on Earl’s age discrimination claim. 

Free Consultation With Ocala Age Discrimination Attorneys 

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience litigating age discrimination cases.  If you have been the victim of age discrimination or have questions about being treated less favorably than younger employees, please contact our office for a free consultation with our Central Florida age discrimination lawyers.  Our employee rights law firm takes age discrimination 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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