Call The Right Attorney™
No Fee Guarantee

Age Discrimination Is Illegal No Matter How Old An Employee Gets

by | Feb 28, 2023 | Age Discrimination, Employment Discrimination, Employment Law, Wrongful Termination |

1994. Cleveland, Ohio. Art Modell had just stolen the Browns from Cleveland. The Cleveland Indians (now Guardians) had just moved into Jacob’s Field (now Progressive Field) and were fielding an amazing young team of players. I will die on the hill arguing that the 1994 Cleveland Indians were the best team in baseball history. Alas, Major League Baseball canceled the season halfway through and locked the players out as part of a labor dispute. The pitching coach that year? Phil Regan, age 54.

Last week, almost 30 years later, Regan sued the New York Mets and former Mets general manager Brodie Van Wagenen for age discrimination arising out of being denied the full-time pitching coach job following the 2019 season. During that season, in June 2019, Regan was hired as the interim pitching coach when the Mets fired Dave Eiland. Regan stepped in and immediately showed results. When it came time to permanently fill the position, Regan was 82 years old. According to the lawsuit Van Wagenen “specifically informed Mr. Regan that he wasn’t being retained because of his age,” and further told Regan that if the team couldn’t find and hire “the young pitching coach” they were targeting, the organization would hire Regan back. Frankly, if true, that is some of the dumbest ass shit to say to an employee.

Now, many employers may think that should be an exception to age discrimination when an employee reaches a certain age – rationalizing that at some point that employees work will decline or that the employee will not be available for the long hall. But that is not the law and there are no such exceptions to age discrimination. Moreover, such rationalization is not even factually accurate given that (according to the Athletic) the average tenure for an MLB coach is just 2.4 years.

That rationalization does not even work in the real workforce either. According to the Bureau of Labor Statistics, the median employee tenure on a job is just 4.4 years. The Bureau of Labor Statistics further reports:

Median employee tenure was generally higher among older workers than younger ones. For example, the median tenure of workers ages 55 to 64 (9.8 years) was more than three times that of workers ages 25 to 34 years (2.8 years). Also, a larger proportion of older workers than younger workers had 10 years or more of tenure. For example, among workers ages 60 to 64, 53 percent had been employed for at least 10 years with their current employer in January 2022, compared with 9 percent of those ages 30 to 34.

Thus, if employers want employees to stick around, hire older workers.

What law protects against age discrimination by employers?

The Age Discrimination in Employment Act of 1967 (“ADEA”) is a federal law that prohibits employment discrimination against individuals who are 40 years of age or older. The ADEA applies to employers with 20 or more employees, including state and local governments.

The ADEA prohibits discrimination in all aspects of employment, including hiring, firing, promotions, compensation, and job training. Additionally, it prohibits the use of age as a factor in decisions regarding layoffs or workforce reductions.

Under the ADEA, it is illegal for employers to use age as a basis for employment decisions, or to use age-related criteria that disproportionately affect older workers. The ADEA also prohibits retaliation against employees who file age discrimination complaints or participate in related investigations. The remedies available to employees who have been discriminated against include hiring, reinstatement, back pay, and compensation for any damages resulting from the discrimination.

Best Lawyer Blogs On Point:

What is direct evidence of age discrimination under the ADEA?

Direct evidence of age discrimination is any evidence that directly demonstrates that an employer relied on an employee’s age in making an employment decision. This type of evidence provides a clear and explicit link between the discriminatory conduct and the employee’s age, without the need for any inferences or assumptions.

Examples of direct evidence of age discrimination under the ADEA may include:

  • A statement from an employer indicating a preference for younger workers or an intention to replace older workers with younger ones.
  • A statement by a manager or supervisor indicating that an older employee is being terminated or demoted because of their age.
  • A policy or practice that specifically targets older employees or treats them differently than younger employees.
  • A pattern of discriminatory conduct, such as repeated instances of older employees being passed over for promotions or given negative performance evaluations.

Direct evidence of age discrimination can be powerful in proving an age discrimination case, as it provides a clear link between the employer’s actions and the employee’s age. However, direct evidence is not always available, and discrimination cases can also be proven using circumstantial evidence or statistical evidence.

If Regan’s complaint is accurate, Van Wagenen’s statements would be direct evidence of age discrimination.

Best Lawyer Blogs On Point:

How do I prove age discrimination without direct evidence?

The McDonnell Douglas test is a legal framework used in employment discrimination cases to determine whether there is sufficient evidence to support a claim of discrimination. This test is used in cases where direct evidence of discrimination is not available, and it allows employees to prove discrimination using circumstantial evidence.

To prove age discrimination using the McDonnell Douglas test, an employee must satisfy the following elements:

  1. The employee is a member of a protected class: In age discrimination cases, this means the employee must be 40 years of age or older.
  2. The employee was qualified for the position: The employee must show that they met the employer’s requirements for the position, such as education, experience, and skills.
  3. The employee suffered an adverse employment action: This could include termination, demotion, a failure to promote, or failure to hire.
  4. The employer treated similarly situated employees outside of the protected class more favorably: The employee must show that other employees who were similarly qualified and who were substantially younger were treated more favorably by the employer. This can be accomplished by showing that a terminated employee was replaced by a substantially younger employee; or that a substantially younger employee was hired or promoted over the plaintiff-employee.

If the employee can establish these elements, the burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the adverse employment action. If the employer provides such a reason, the burden then shifts back to the employee to show that the employer’s stated reason is pretextual, or a cover-up for discriminatory intent.

By using the McDonnell Douglas test, an employee can prove age discrimination without direct evidence by showing that the employer’s actions were motivated by the employee’s age, and that the employer’s stated reasons for the adverse employment action were pretextual.

Given that the Mets hired Jeremy Hefner, 33, instead of Regan, there should be no dispute on the prima facie elements of the age discrimination claim – even if the direct evidence is ignored. This means that the next step is for the Mets to state a legitimate business reason for this decision that has nothing to do with Regan’s age. The team has not done so yet.

Best Lawyer Blogs On Point:

What can I do if I was fired for being too old?

If you are an employee over the age of 40 years old and believe that you are being discriminated against or fired because of your age, your best option is call the largest focused employee’s rights law firm in your state. Spitz, The Employee’s Law Firm is the third largest dedicated employee’s rights firm in the United States. You should call Spitz as quickly as possible to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?).

Best Lawyer Blogs On Point:


This employment law website is an advertisement. The wrongful termination and failure to hire 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. 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 The Spitz Law Firm, Brian Spitz, or any individual attorney.

"" "