Over 40 and Fired? You may be the Victim of Age Discrimination

By: Barrie Denmark, Esq.

“Youth, is the most beautiful thing in this world—and what a pity that it has to be wasted on the young!” – George Bernard Shaw

There is a huge emphasis on youth these days. In business and in advertising being youthful is extolled as a virtue. When was the last time you saw a beer commercial with a bunch of 50-year olds frolicking on a beach? Or 60-year olds rocking their new fashion finds from Abercrombie and Fitch? Even the elderly seek every conceivable solution to maintaining youthfulness and vigor; from little blue pills to botox-treated immovable foreheads. In order to attract young, upwardly mobile clients (the kind that statistics show spend more money) businesses want to be thought of as forward-thinking, cutting edge, and even fun. But when an employer fires, or fails to hire, a qualified employee because she is over 40, chances are there has been a violation of the Age Discrimination Employment Act of 1967 (ADEA).

There are several qualifying factors to consider:

• The employee is of 40 years of age or more,
• The employee was replaced by someone under the age of 40, or considerably younger (for example a 60 year-old replaced by a 40 year-old),
• The employee was qualified for her position and performed it in an acceptable manner,
• The employee was not fired for good cause, including lying, stealing, non-adherence to reasonable company policies,
• And finally, the employee is employed by a business that has at least 20 full or part-time employees throughout the calendar year.

But I’m Only 40; I’m not old yet!

Wondering if perhaps you have a claim under the ADEA? Here are a few actual examples of cases the courts decided:

• When one of the country’s most successful discount airlines started out, it made a heavy sales pitch toward male business travelers, in part by hiring only young, female cabin attendants and dressing them in “hot pants.” When males, and older women, alleged discrimination the company responded that this particular set of practices created an image that was part of its business. Nice try, but the court wasn’t buying it. The court found that the airline’s business was transporting passengers and that the image that was created by scantily-clad young women was not so central to tat business that restricting cabin attendants to young females was justified.
• In another case though, an airline that questioned the skill and ability of pilots over 60 and required pilots to retire at age 60 was not guilty of discrimination since, at the time, the FAA forbade the use of pilots over the age of 60 in commercial aviation based on tests showing a decline in ability. On the other hand, the same airline could not refuse to hire flight engineers over 60 because it could not determine which engineers would constitute a safety hazard.
• Finally, a long-time clerk in a fine women’s clothing store was demoted and moved to a position in the stock room, at a reduced wage, because, according to the employer, she no longer represented the “typical customer” and younger women had complained that she could not possibly know what they wanted. The store argued that their very existence was dependent on attracting young, well-to-do women customers and appealing to them was a legitimate reason for the action. Upon review, the court learned the woman’s performance and sales numbers were consistent and satisfactory. Only her age was at odds with the store’s image. The final verdict? Stores may not hire or fire employees based solely on age.

Are You a Victim?

It’s difficult for anyone to lose a job and to be out of work. The questions abound: How will I pay my mortgage, feed my family, prepare for retirement? But for an older employee, some say it is even more difficult. Statistics show it is more difficult to get a new job after the age of 50. Employers do place a premium on the fresh ideas and lower benefit costs that younger employees bring to the table, even at the expense of wisdom and experience. And it isn’t often easy to prove that age was a significant factor in their decisions.

If you are over 40 and you think you may have fallen victim to an ADEA violation — either through being fired or demoted, or by not being hired at all — it is important to seek experienced legal counsel to help you navigate the system to your advantage. Just because the government affords us these protections, doesn’t necessarily mean it will make it easy to get relief. Pometto Law will help you proceed. Contact us now for a free consultation at (412) 887-3851.