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Can I Be Forced Out Of My Job Because Of My Age?

Published By | Jan 10, 2022 | Age Discrimination |

Best Employment Discrimination Attorneys Answers: How do I prove a claim for age discrimination? What should I do if I was fired once I turned 65 years old? Can my job replace me with a younger worker? Can I be refused a job because of my age?

Unfortunately, loyalty does not always go both ways in the workplace. Many American workers will spend many years or decades working for a company only to be confronted with age discrimination. Many older workers will either be pushed out by increasing antagonism and hostility or just out right fired. Employment Discrimination Attorneys call the first situation a “constructive discharge,” and the second “wrongful termination.” To make matters even worse, these older Americans then face age discrimination when looking for a new job, which often results in older applicants being passed over in favor of younger and less experienced candidates. Employment discrimination lawyers call this “wrongful failure to hire.”

Age discrimination is unlawful under the federal Age Discrimination in Employment Act (“ADEA”).  All states have laws that also make age discrimination illegal, including Ohio R.C. §  4112.14. But these laws can be tricky and often a knowledgeable and experienced lawyer will make all the difference in a claim.

A recent case in the news provides a good example. Davis Automotive Group, doing business as BMW Cleveland, recently settled a case for firing two older employees and refusing to hire another. Wrongful termination and wrongful failure to hire. According to the lawsuit, the employer first tried to push out Ronald Wesley and Avery Wieder, who were 70 and 67 years old respectively at the time. Wesley and Wieder were hired as car salespeople in 2011 and 2012, but the lawsuit provides that starting in 2016, the employer, bosses and managers sought to create a more youthful work environment by discouraging the hiring of older workers in favor of hiring of less-qualified people in their 20s and 30s. The bosses and managers participated and promoted age related comments to Wesley and Wieder, including that “hat they had been around since Ford created the automobile, that they were too old to relate to millennial customers, that they were too set in their ways, that they were too old to do their jobs, and addressed them as Waldorf and Statler (the older Muppets from the balcony),” per the complaint. When pushing them out did not work, the company wrongfully fired Wesley and Wieder on Oct. 19, 2017, despite the fact both employees had met or exceeded the performance metrics set for them. The employer then replaced both employees with new employees, who were in their 20s and 30s and much less experienced.

A plaintiff may prove intentional age discrimination in employment (1) by direct evidence that a termination or other adverse employment decision was motivated by age or (2) indirectly, by circumstantial evidence, using the burden-shifting method articulated by the United States Supreme Court in  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as adopted by Ohio Supreme Court in  Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807 (1983) and modified in Coryell v. Bank One Trust Co. N.A., 101 Ohio St.3d 175, 2004-Ohio-723, 803 N.E.2d 781. If there is no direct evidence of age discrimination, a plaintiff must prove age discrimination using the “indirect method of proof.” Warden v. Ohio Dept. of Natural Resources, 2014-Ohio-35, 7 N.E.3d 533, ¶ 29 (10th Dist.).  To indirectly establish discriminatory intent, the plaintiff must first establish a prima facie case of age discrimination. In a termination case, the plaintiff employee must prove by a preponderance of the evidence that he or she: (1) was a member of the statutorily protected class, i.e., over 40, (2) was terminated from employment, (3) was qualified for the position and (4) was replaced by, or the discharge permitted the retention of, a person of substantially younger age. Warden at ¶ 29, citing Dautartas v. Abbott Laboratories, 10th Dist. Franklin No. 11AP-706, 2012-Ohio-1709, ¶ 26.

Wesley and Wieder appeared to have enough evidence to get the case to the jury.

The other example from this case comes from what happened to Kymberly Saba, who previously worked for Davis Automotive Group as a liaison between customers and mechanics from May 2015 until resigning in May 2016. Subsequently, Davis Automotive Group employee Kymberly Saba a job to head up its call center. Saba, who was 52 years old when she was offered the job in 2016, accepted the job but then never heard back from the dealership. Saba later found out the employer actually hired a woman in her 30s for the job and never told her, according to the suit.

Our employment law attorneys have blogged before about failure to hire cases (see Can A Potential Employer Refuse To Hire Me Due To My Age? I Need The Top Age Discrimination Attorney In Ohio; Employment Discrimination: Refusal to Hire; Can An Employer Discriminate When Making Hiring Decisions? I Need An Attorney!). The manner to prove a failure to hire case is very similar to a wrongful termination claim.

Based on the wages, salaries and commissions made by these employees Davis Automotive Group recently agreed to settle their claims for a combined $390,000.

If you are an employee over the age of 40 years old and have suffered or are facing discrimination because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with someone 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. Call our wrongful termination lawyers right now.

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 age discrimination materials available at the top of the wrongful termination 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 if my boss makes fun of me for being older”, “I’m being discriminated against because of my age”, or “How do I file wrongful failure to hire claim”, 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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