As the population ages, and the economy continues to languish, more and more older Americans are putting off retirement and continuing to remain in the workplace. While many of these individuals offer long records of experience and maturity, companies often overlook hiring or promoting older employees in favor of their younger counterparts. As a result, age discrimination has become one of the fastest growing types of employment discrimination.
In a recent case, a 68-year-old attorney who was denied a job at a software firm filed a claim under the Age Discrimination in Employment Act (ADEA) asserting that he was “clearly better qualified” than the “substantially younger” applicant.
Similar to other anti-discrimination laws, the ADEA prohibits adverse employment actions against you on the basis of age – including decisions regarding hiring and firing – and protects you from harassment based on your age.
In Moss v. BMC Software, Inc., a company hired a substantially younger candidate explaining that although the older candidate – Moss – had more extensive legal experience, the successful candidate had greater familiarity and expertise with specific transactions that formed the majority of the job. Moss asserted that the company’s reasons for hiring the younger candidate were mere pretense and that and his age was a “motivating factor” in the company’s decision not to hire him. The U.S. Court of Appeals for the Fifth Circuit rejected these arguments and granted the company’s motion for summary judgment, noting that the “motivating factor” standard is not applicable to ADEA cases. Unlike Title VII discrimination, under the ADEA plaintiffs must prove age was a “but for” cause of an adverse employment action.
In granting the summary judgment motion, the court stated that the employee failed to show direct discrimination and would not “second-guess” the company’s business judgment about which job qualifications were most essential.
Although age may be a factor considered in an employer’s decision -making process, it cannot be the only one.
Your choice to remain in the workforce as an older American should not be cause for discrimination and harassment. If you believe you have been subject to an adverse employment action as the result of your age, you may have a claim under the ADEA. For more information, please contact Buckley Bala Wilson Mew LLP, a Georgia law firm dedicated to employee’s rights.