As the number of older Americans in the work place continues to increase, so does the number of Americans facing age discrimination at work. If you are over 40, the Age Discrimination in Employment Act (ADEA) prohibits your employer from discriminating against you and protects you from harassment based on your age.
Often, discrimination occurs when one company merges with another, or goes through a reduction in force (“RIF’) and evaluates which employees to retain or terminate. If the employee’s age is used to determine whether someone should be laid off, the employee may have a claim for age discrimination.
A recent case determined that when one company buys-out another, claims based on age discrimination survive. In Phair v. New Page Corp., a 55-year-old employee – David Phair – was fired after his employer was purchased by another company. In advising the new company regarding whom to retain and whom to eliminate, the managers of the former employer raised concerns about the age of some employees and offered anecdotal evidence about who might be a good fit. Without a comprehensive review of any employee personnel files or performance reviews, Phair was offered a temporary position involving significant travel. He declined this position and was fired. An additional 4 employees, all older than 40, were terminated as well.
Several factors affected the court’s determination that Phair could maintain a cause of action against the companies. First, the District Court found that although Phair’s offered transfer was lateral, it could be considered an “adverse employment action” because it involved switching from a full time position without travel to one involving extensive travel. Further, Phair was replaced with an employee 4 years, 9 months younger than him. Because authority is split on whether this constitutes a “substantial age difference,” the court determined that an age difference close to 5 years was sufficient to raise an inference of age bias. Finally, the court held that discriminatory comments such as concern over the “aging workforce” and the fact that statistically older workers were overrepresented in the group of employees let go was sufficient to create a triable issue on whether age was a “but for” factor in Phair’s termination.
More and more older workers are staying in the work force. Although many employers are happy to have experienced workers on the payroll, age discrimination has become one of the fast growing types of employment discrimination in the United States. If you are over 40 and believe you have been the victim of age discrimination, please contact Buckley Bala Wilson Mew LLP, a Georgia employment law firm dedicated to protecting individual’s rights at work.