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Top Age Discrimination Lawyer Response: Is It Still Age Discrimination If My Job Replaces Me With Someone Over 40 Years Old?

On Behalf of | Sep 11, 2014 | Age Discrimination, Employment Discrimination, Wrongful Termination |

Best Ohio Age Discrimination Attorney Answer: What constitutes a “significantly younger” person for purposes of an age discrimination claim? What should I do if my employer is trying to force me to retire? What damages may I be entitled to if my employer discriminates against me based on my age? What should I do if I was wrongfully terminated based on my age?

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Both federal law, under the Age Discrimination in Employment Act, and Ohio law, under Ohio Revised Code § 4112.02(N), § 4112.05 and § 4112.14 protect an employee from being discriminated against, retaliated against, or wrongfully terminated based on his or her age.

Age discrimination cases under the ADEA are evaluated by Court in the same way that other discrimination cases under Title VII of the Civil Rights Act of 1964, such as race, gender, national origin, and religion. The burdens of proof in these types of cases is evaluated in three steps. Initially, the employee must show: (1) that he or she is a member of a protected group; (2) that he or she was subject to an adverse employment decision or action; (3) that he or she was qualified for the position; and (4) that he or she was replaced by a person outside of the protected class. Employment discrimination lawyers call this a “prima facie case.” In age discrimination cases, the protected class includes all workers at least 40 years old. However, the fourth part of this test is changed a bit compared to the other protected classes. Specifically, the employee does not need to show that he or she was replaced by a person outside the protected class, but instead just by someone “significantly younger.”

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Second, if the plaintiff can present evidence of this prima facie case, the burden of proof then shifts to the employer to state some legitimate, nondiscriminatory reason for its actions against the employee.

Third, if the employer can meet this burden, which is relatively easy, the employee then has to produce evidence from which the jury may reasonably conclude that the employer’s explanation is not true. Employment law attorneys call this pretext. In some cases, the employee’s evidence proving his or her prima facie case can also be used to rebut the employer’s stated reasons.

Many employers make the mistake of believing that they can oust an age protected worker simply by replacing them with younger worker that is still in the protected class. A recent verdict against an employer shows the error in this line of thinking. In July 2014, a federal court in Connecticut upheld a jury verdict and award of $3.7 million to a 61-year old employee who had been removed by IBM from his position as Vice President of Public Sector Delivery and replaced with a 49-year old co-worker. In the case, Castelluccio v. Int’l Bus. Machs. Corp., (D. Conn. No. 3:09-cv-01145), Castelluccio brought his age discrimination claims after not only being removed and replaced in his position by his 49-year old counterpart, but also as a result of having his work assignments severely diminished by the company after the position change. In addition, Castelluccio received comments from IBM employees about being “old enough to retire”. Eventually, after being removed from his VP position, Castelluccio was terminated by IBM.

After a jury verdict in his favor and an award of $3.7 million, Judge Thomas Smith in the federal district court in Connecticut upheld the verdict citing the heartfelt testimony that Castelluccio gave to the jury during trial and identifying with Castelluccio that losing his job at IBM at age 61 not only affected him financially by losing his job, but in reality, “shattered the very foundation of his identity”. Prior to his termination, Castelluccio had been employed with IBM for over 40 years.

If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”


This employment law website is an advertisement. The materials available at the top of the age discrimination blog page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “What should I do …”, “I’m being discriminated against …”, or “How do I …”, your best option is to contact an Ohio attorney to obtain advice with respect to any age discrimination claim questions or any particular employment law issue that you may have. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship for your employment law needs. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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