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My Employer Will Not Promote Me Because Of My Age. I Need The Top Employment Lawyer In Ohio!

On Behalf of | Jun 14, 2016 | Age Discrimination, Employment Discrimination, Wrongful Termination |

Best Ohio Age Discrimination Attorney Answer: Can my boss choose to hire or promote younger workers because they will be around longer? Can I sue for wrongful termination if I was fired today because my boss says that I am too old and should enjoy retirement? How do I prove age discrimination? 

promote, I was fired, my job discriminates, older, younger, age discrimination, retire, forced retirement, my job, my boss, managers, supervisors, Age Discrimination in Employment Act, ADEA, I’m being discriminated against, Employment, Lawyer, attorney, At Spitz, The Employee’s Law Firm, our employment discrimination lawyers regularly hear the problems that older workers face regarding age discrimination. Many employers think that it is okay to favor hiring and promoting younger employees because it is better business to hire people who will be around longer or cost less to hire. Some bosses will simply wrongfully terminate older workers under the notion that younger blood is needed to shake things up. As our dedicated lawyers have repeated written in our employment discrimination blog, such conduct by bosses, mangers, and supervisors is prohibited under Ohio and federal law. (See Age Discrimination: A Good Verdict.; Age Discrimination: Sometimes, It Is Just That Simple.; Is It Age Discrimination If I’m Replaced By A 40+ Years Old?; and I Didn’t Get  A Promotion Because I’m “Old”! – Call The Right Attorney).

The Age Discrimination in Employment Act (“ADEA“) and Ohio’s R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14 make it unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age. One way to prove age discrimination under the ADEA and Ohio law is for the employee to set forth “direct” evidence of age discrimination. Direct evidence of age discrimination includes an employer’s comments referring directly to an employee’s age.

Ohio, Cincinnati, Cleveland, Columbus, Toledo, What should I do, How do I, employer, employee, wrongful termination, discriminate, discriminating, best, top, Brian SpitzIn France v. Johnson, the United States Court of Appeals for the Ninth Circuit overturned a district court’s granting of summary judgment regarding an employee’s failure to be promoted, based on his allegation that he was discriminated against based on his age. Specifically, John France was a border patrol agent assigned to the Tucson Sector of Border Patrol, an agency of the United States Department of Homeland Security. In March, 2007, the agency developed a pilot program that created two classes of employees who where Assistant Chief Patrol Agents, one being an administrative role and given a GS-14 pay grade (what France currently made) and an operations role, given a GS-15 pay grade.

France, along with several other employees, applied for the operations role. France, at age 54, was the oldest applicant. Four of the applicants were selected for further review, ages 44, 45, 47 and 48. France was not selected. Thereafter, France sued, claiming age discrimination. After the district court granted summary judgment, France appealed.

The Court of Appeals first looked at the prima facie case for failure to promote based on age discrimination. In a failure-to-promote case, a plaintiff may establish a prima facie case of discrimination in violation of the ADEA by producing evidence that he or she was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. Initially, it appeared that France was going to fall short of having enough evidence to create a genuine issue of material fact regarding the fourth element of his prima facie case because the average age of the four applicants selected over him was eight years. With this fact, the Court held:

We agree that it is a reasonable and workable rule, so we adopt the Seventh Circuit’s rebuttable presumption approach. We hold that an average age difference of ten years or more between the plaintiff and the replacements will be presumptively substantial, whereas an age difference of less than ten years will be presumptively insubstantial…. Here, the average age difference between France and the selected ACPAs is eight years, which is presumptively insubstantial.

Even so, the Court did not stop there and rule against France. Instead, because France also presented evidence that it was expressly told to him that there was a preference to hire “younger, less experienced agents,” this additional evidence, in addition to the average age difference of the selected applicants was sufficient to establish a prima face case for age discrimination.

Finally, the Court of Appeals held that there was sufficient evidence of pretext to overturn the district court’s granting of summary judgment. Specifically, the Court determined that the trial court failed to take into account “repeated retirement discussions” that France’s boss had had with him prior to him applying for the promotion. Moreover, the Court of Appeals rejected the employer’s argument that France’s boss played a limited role in the decision to promote the four other applicants over France, and held that there was evidence that France’s boss not only did not play a “limited role” but even if he had, France still was able to set forth evidence that his boss played the role of a “cat’s paw“ meaning that he had sufficient influence over the decision to promote the other individuals even if he was not the final decision-maker. This evidence, taken together, was sufficient for the Court to rule that summary judgment was not appropriate. As a result, France will get to go back to the trial court and have his age discrimination case heard by a jury.

If all of this seems a bit confusing and unclear, it is because it is. With employment discrimination and wrongful termination cases, there are a lot of moving parts and very few clear cut answers. As was the case here, different judges will view age and other discrimination cases very differently. Knowing all the little things that might turn a case will give you the best chance to win your employment discrimination case. That is why the best thing that you can do is find the top experienced employment law lawyer that you can find to help with your case.

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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