Best Age Discrimination Attorney Answers: Can I be fired for reporting age discrimination to HR? How should HR handle age discrimination? Is it illegal for employers to discriminate by age? How do you prove age discrimination at work?
Our employment discrimination lawyers have often blogged about age discrimination and the protections afforded under the Age Discrimination in Employment Act (“ADEA”), which amended Title VII of the Civil Rights Act of 1964. (Best Law Reads: Can I Be Forced Out Of My Job Because Of My Age?; Can I Be Fired For Exploring Retirement Options?; How Do I Prove A Failure Hire Case?).
I came across an age discrimination example in the news. Now, this is an age discrimination example out of England, but the fact demonstrate clear age discrimination under our laws as well (even if they call wrongful termination getting sacked). David Robson, who at 69 years old, was the oldest plumber/pipefitter at Clarke’s Mechanical. Earlier in his career, Robson was called “Disco Dave” by his coworkers, but as he got up in age, his fellow employees started calling him “Half-Dead Dave,” which was an undisputed reference to his older age. Robson stated that he tried putting up with because he only had a couple of years left but that hit became so pervasive that it made doing his job difficult. (Best Law Reads: What Is A Hostile Work Environment?; Are you experiencing a hostile work environment?; Top Employment Lawyer Reply: How Do I Prove That I Work In A Hostile Work Environment?). Under Title VII and the ADEA, a hostile work environment arises where harassment or discrimination (because of race, gender, national origin, religion, age, or disability) is so severe or pervasive that creates an abusive working environment that prevents the employee from doing his job. To prove the “severe or pervasive” requirement, an employee must present evidence that the work environment is both subjectively hostile (personally hostile to the employee) and objectively hostile (a reasonable person would find the environment hostile). Courts will typically consider the objective component from the perspective of a reasonable person standing in the shoes of the plaintiff-employee. The name-calling by co-workers alone will not likely rise to the level of being a hostile work environment unless the employee shows that the boss or other management knew or should have known about the conduct.
In this case, Robson reported the age harassment to his bosses. But, instead of fixing the problem, these managers joined in calling him “Half-Dead Dave,” and even introduced the term to a new employee. Not only will the managers and supervisors joining in the harassment further advance the hostile work environment claim, but it will also give rise to a claim of retaliation. (Best Law Read: How Do I Prove Illegal Retaliation By My Job Under Title VII?) Directly on point, the opposition clause of Title VII, which also applies to the ADEA, makes it “unlawful … for an employer to discriminate against any … employe[e] … because he has opposed any practice made … unlawful … by this subchapter.” § 2000e–3(a). Retaliation does not have to be a wrongful firing. Illegal retaliation can be established when a boss, manager, supervisor, or HR takes an action that would dissuade a reasonable employee from taking the same kind of protected activity. Certainly, responding to the report of age harassment by calling the employee the same harassing name that is being reported would dissuade a reasonable employee of making that report.
Shortly after complaining, the employer claimed that it needed to cut an employee due to “redundancy,” and surprise, surprise, despite Robson have more seniority and experience, he was selected over much younger employees. The employer blamed the decision on a points-scoring system created solely for this determination. Of course, Robson asserted that this system was fake and that there is no justification for his low score. The legal term used by employment lawyers for these lies told by employers to justify an otherwise wrongful termination is pretext. (See Employment Discrimination Question: What Is Pretext?; Can My Job Use COVID As An Excuse To Fire Pregnant Workers?) The Court agreed that this scoring system was pretext and that Robson was wrongfully fired.
So, as a reminder, an employee can prove age discrimination either by using (1) direct evidence that the adverse employment decision (such as termination of employment) was motivated by age or (2) circumstantial evidence through 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). This is commonly referred to as the McDonnell Douglas test, and was as adopted by Ohio Supreme Court in Barker v. Scovill, Inc., 6 Ohio St.3d 146, 451 N.E.2d 807 (1983). Under the McDonnell Douglas test, an employee must first establish a prima facie case of age discrimination. In a wrongful termination case, these elements include that the employee: (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. Robson did that. Once that prima facie case is established, the employer can articulate a legitimate business reason, which Clarke’s Mechanical did by pointing to the alleged scoring system. However, if the employee can prove that the stated reason is a lie or did not actually motivate the employer, then the employee wins. Robson won in England and likely would have won in the United States – at least if he found the best employment law lawyers to help him sue his employer.
If you are over the age of 40 years old and believe have been discriminated because of your age; have be wrongfully terminated or fired over younger, less experience employee; or were replaced with someone younger than you, you should immediately contact an employment law lawyer to discuss your potential 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. At the free initial consultation with an wrongful termination lawyer near you, you can tell us the specifics about how “my boss made jokes about my age” or what happened on “my job.”
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