Do I have an age discrimination case if the person who replaced me is over 40?

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Question:

I recently lost my job in a layoff. About 15 people were laid off, but I'm the only one who was replaced. (The other jobs were eliminated in a downsizing.) For the last couple of years, my manager has made a bunch of comments about my age (68). He kept asking me when I was going to retire, telling me I was taking a job away from a young person with a family to support, and saying that he wanted to bring some "fresh ideas" and "new blood" to our department. Now, just a week after I lost my job and was told it had been eliminated, he has hired a 42-year-old to replace me. I know that the age discrimination laws protect employees over the age of 40. Is it age discrimination to replace me with a younger person, even if he is also over the age of 40?

Answer:

It's true that the Age Discrimination in Employment Act (ADEA) protects only applicants and employees who are at least 40 years old. This means that no "reverse discrimination" cases can be brought under the ADEA. In other words, it isn't illegal for an employer to prefer an older employee because of age, and employees have no right to be protected from age discrimination until the reach the age of 40. If a 39-year-old is fired to make room for a 26-year old, the displaced employee has no ADEA claim, even if the decision was based on age. 

Once the older employee passes the threshold age of 40, however, everything changes. Employees who are within the protection of the ADEA may not be treated differently because of their age. It doesn't matter whether the preferred employee is 21, 41, or 61: If the older employee is treated worse because of age, that employee is protected by the ADEA. 

If it seems quaint that the ADEA kicks in at age 40 -- a time when many are just coming into their career stride -- consider this: Employees used to be protected only until they reached the age of 65! This may have made sense in 1967, when the ADEA was originally passed. These days, however, people are working longer. In 2010, more than 17% of those who were at least 65 years old were in the work force; by 2020, this number is expected to rise to more than 22%. For the last 25 years or so, there has been no upper limit on the ADEA's protections. 

Based on the comments your manager made and the fact that only you were replaced following the layoff, you may have a pretty good age discrimination claim. Talk to an experienced employment lawyer to review your legal options. If you decide to proceed against your employer, you'll need to file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or your state's fair employment practices agency before you can go to court. There are strict deadlines to meet, so don't delay if you want to move forward. 

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