Best Ohio Age Discrimination Attorney Answer: Can my employer use age as a hiring decision? Can an employer pass me over for a job opening due to my age? Is it legal to refuse to hire someone due to their age?
The dedicated employment discrimination lawyers at the Spitz Law Firm regularly discuss age discrimination and its impact on employees. (See Can I Sue For Age Discrimination? – Call The Right Attorney; My Employer Will Not Promote Me Because of My Age; My Boss Said I am Too Old To Keep Working; Can My Employer Force Me To Retire At 65?; I Didn’t A Promotion Because I’m “Old”! – Call The Right Attorney; and Where, When And How Do I File My Age Discrimination Claim?). However, a somewhat more difficult and nefarious issue arises when the discrimination occurs before an applicant is even hired. Unlike a wrongful termination, this is called a refusal or failure to hire case.
The Age Discrimination in Employment Act (“ADEA“) makes 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. Ohio state laws R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14 also protect employees from being discriminated against on the basis of age.
Establishing that a decision not to hire was made on the basis of the applicant’s age can often be difficult as it requires determining the motives of the hiring body at the time that a hiring decision was made. There are two primary ways to go about proving age discrimination in failure to hire cases. First, there is proving age discrimination by direct evidence, which means evidence that does not require a jury to draw any inferences in order to conclude that the adverse employment action was motivated, at least in part, by age related prejudice. For example, in a failure to hire case, direct evidence of discrimination would be the interviewer or decision maker saying, “we want to have a younger and more energetic work force,” or “sorry, we are looking for someone that will be here a long time and not retire anytime soon,” would be direct evidence. Our employment discrimination lawyers have actually seen emails from employers to staffing firms stating that they want candidates in their early 20s or 30s. This would also be direct evidence of age discrimination.
Another way that our employment attorneys prove age discrimination is through indirect evidence or circumstantial evidence. For example, indirect evidence can be used in proving discrimination as part of the selection process by showing a pattern of selecting younger applicants over equally or more qualified applicants that are over the age of 40.
Take for example the recently settled age discrimination case against RCH Colorado, LLC (“RCH”), which contains a laundry list of examples that employers should not do when making hiring decisions. Following the slimy examples set by RCH is perhaps the best way to end up on the wrong side of an age discrimination suit. In the age discrimination complaint the details of the surprisingly overt discriminatory practices were brought to light. In January of 2011 RCH purchased Fortune Valley Hotel and Casino (“Fortune Valley”). The casino had over 300 employees between its hotel and casino operations. Prior to the sale of Fortune Valley, managers of RCH were heard saying that the casino needed to get rid of “gray hairs” and saying that “too many old, fat, ugly and gray-haired employees” worked at Fortune Valley. After the acquisition of Fortune Valley, a manager of RCH took photographs of all existing employees in order to “update records.” Shortly thereafter, RCH fired all employees of Fortune Valley so that they could pick their own people. By firing everyone, the employer thought that it could get away with getting rid of all the older employees because the mass termination could not be based on age since everyone from young to old was fired. For the most part, this would have been a sound argument if the story stopped there. But, as you probably already know, the story goes on…
RCH then went about re-staffing Fortune Valley. They hired 240 employees, 95 percent of which were employees of the former owner. In fact, only the four oldest applicants, who ranged in age from 58 to 63, were not rehired for their position back at the casino. RCH used the updated photograph records as a tool to discriminate against these applicants on the basis of age and hired younger applicants. To make matters worse, RCH had written hiring criteria that they alleged was being used to select the best applicants to be hired – but the older but not hired applicants actually scored higher on these criteria than a majority of the younger applicants who were given the jobs.
As is often the case when companies think that they are cleverer than the law, this poorly executed and malicious plan did not go unnoticed. In a big win against the house, the casino agreed to pay $250,000.00 to the four applicants. Additionally, RCH will be required to revise and distribute its anti-discrimination policies and report any complaints of age directly to the Equal Employment Opportunity Commission (“EEOC“) for the next three and a half 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.”
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