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What It Takes to Win an Age Discrimination Suit

The bar has gotten higher, but here’s what to do if you believe you have a case

By Penelope Lemov

When you lose your job at 45 or so, it’s tempting to want to sue for age discrimination, especially if you received excellent annual reviews and were replaced by someone 20 years younger.
While you may think you have an airtight case, the odds against winning could be low. What’s more, you could wind up paying a high price — not just monetarily — by going to court.
That said, you’ll hardly be alone seeking legal redress.
(MORE: How Women Job Seekers Can Beat Age Discrimination)
Age Discrimination Complaints Have Soared

Age-related charges make up a growing number of complaints filed at the Equal Employment Opportunity Commission, the federal agency that handles such matters. Between 1997 and 2007, there were generally between 16,000 and 19,000 annual filings. But since 2008, the number of complaints has soared to 23,000 to 25,000 a year. Federal law says it’s illegal for an employer with 20 or more employees to discriminate against employees 40 or older based on their age.
Meanwhile, it has gotten harder and harder to win an age discrimination suit. Not that there aren’t successes.
Last July, Debra Moreno of Maui, a 54-year-old office coordinator of a Honolulu-based health care company, won a $193,236 judgment in U.S. District Court. Despite excellent ratings by her manager as a thorough and efficient worker, Moreno was fired in 2008. She subsequently learned that the company’s owner had made disparaging remarks to other employees about her, saying that she looked “like a bag of bones” and “sounds old on the telephone." Those remarks helped Moreno win her suit.
Few employers say something as intemperate as the comments made by Moreno’s boss, which is why proving an age discrimination case is so difficult. “There are always extreme cases where the employer behaves in a gross or offensive fashion,” says Pearl Zuchlewski, a New York-based employment lawyer. “But most employers know how to cover their tracks.”
Why Winning a Case Has Become Harder

Several court decisions have made the road to winning even harder.
(MORE: How to Find Firms That Value Older Workers)
Although companies can fire any employee at will, it used to be that if you were terminated to save the firm money and were also older, there was an inference of age discrimination since senior staffers tend to be paid higher wages. As a result, courts might have ruled in your favor. Now, Zuchlewski says, the courts consider that when a company is doing a reduction in force it wants to eliminate higher-paid people. “There’s no longer a link to age as a clear evidentiary issue,” Zuchlewski said.
The 2009 Supreme Court case Gross v. FBL has also made it tougher for plaintiffs to make their cases.
In that case, Jack Gross, a vice president at the Iowa-based insurance firm FBL Financial, was among a dozen employees on a list of staffers being demoted. All were older workers — Gross was 54 at the time — as well as high performers. Gross sued for age discrimination and won in lower courts, but lost in the Supreme Court, which ruled that a plaintiff must prove that age was the reason for discrimination.
Before Gross v. FBL, if an employer had a solid business reason for firing or demoting an employee but that was mixed in with age discrimination, the plaintiff had a valid claim. Now, plaintiffs must show age discrimination as the motivating factor. “It elevated the level of proof,” Zuchlewski says.
How Filing an Age Discrimination Suit Can Backfire

Even if you have grounds for a suit, career experts say going to court could be a big mistake. “Suing your employer for age discrimination is basically playing Russian roulette with your career future,” says Paul Bernard, an executive coach and frequent writer for Next Avenue. “You burn your bridges and may never get hired again.”
Employers tend to see job applicants who have sued for age discrimination as troublemakers who might eventually bring a case against them too, career pros say. “If you’ve filed an age discrimination suit against your former employer,” Bernard says, “you become a high-risk employee to hire.”
A lawsuit can also take an enormous emotional toll on you. Bernard says taking your former employer to court over a perceived age discrimination firing is  “a vampire lawsuit – an emotional energy eater.”  
(MORE: 6 Ways People Over 50 Can Find Jobs They Love)
It’s also time consuming and can keep you from getting on with your life. “Most people,” Zuchlewski says, “want to get another job and not spend years in deposition.”
But the biggest reason to hold off filing suit is a pocketbook issue: You may do much better financially by negotiating with your former employer rather than taking the company to court.
Making a persuasive case can provide leverage that will enhance your separation agreement and save you the cost of legal expenses, not just attorney fees but the cost of depositions. In New York, for example, a deposition transcript can cost $1,800 dollars a day.
If you decide to sue, be sure you have a case that legal experts see as strong. Chances are, you won’t have much of one if you were part of a mass firing. But if you were singled out and your manager or boss has said disparaging things concerning your age, your prospects for winning are better, especially if you have those remarks in writing.
What to Do if You Want to Sue

Here are the legal steps to take if you’re considering suing your employer for age discrimination soon after being fired:
Meet with a lawyer who specializes in employee discharge suits. and are two websites that list discrimination attorneys by state, city and county.
Ask your attorney about anti-discrimination laws and rules where you live. Many states and local jurisdictions have their own system for filing complaints and there are bureaus responsible for enforcing them, known as Fair Employment Practices Agencies, or FEPAs.
In some cases, states and municipalities offer greater protection to workers than federal courts do. Some state age discrimination laws apply to firms with fewer than 20 employees as opposed to the federal rules that apply only to companies with 20 or more staffers.
FEPAs may also have different standards, deadlines and relief options than the EEOC. Under New York state law, for instance, you can sue for back pay and emotional distress, but you can’t recover punitive damages or attorney fees.
Quickly have your lawyer review everything your former employer asked you to sign before leaving your job. You have 21 days from the time you’re fired to consider any severance package an employer has offered and just seven days to change your mind if you agreed to it.
Create a written record of any documentation that suggests age discrimination. “I tell clients, if your boss comes in and says, ‘You’re getting long in the tooth, you should have retired long ago,’ you might want to jot that down as a permanent record of the comment,” Zuchlewski says.
If you and your attorney believe you have a case, file a complaint with the EEOC. The agency has a minimum of 60 days to consider your case. When you go to the EEOC, you are, in effect, asking for the right to sue in federal court. Once you hear back, you’ll know whether to keep fighting or just move on and pursue the next step in your career.

Penelope Lemov is the founder and writer-in-chief of the blog Parenting Grown Children. She is also a financial columnist for Governing, a national magazine and website. Read More
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