How to Prove Your Age Discrimination Case


Hi, my name is Jack and I’m an attorney with The Spiggle Law Firm. In today’s video, I’d like to speak with you about the types of evidence we evaluate when determining whether someone has a case for age discrimination, but generally, any type of discrimination. There’s two methods of proving discrimination in the employment context. The first is through direct evidence and the second is indirect evidence.

Now, direct evidence is, sort of, a smoking gun evidence. Where your boss sends out an email saying, “Hey, I’ve created a new team and people under 35 are allowed to apply.” In that case he’s clearly stating a discriminatory despair treatment based on age and is directly related to an employment action like a promotion. That type of evidence you can use to directly proof discrimination.

The vast majority of cases, however, are approved through indirect. And to show indirect…to show discrimination through indirect evidence, there’s three elements. And the first is that you must show that you are a member of a protected class. And so, in the age context, that’s anyone over 40. The second thing you must proof is you are subject to an adverse employment action. So this includes things like a termination, or a failure to promote, or reassignment to a less favorable position. So you show that, and you show that you are a member of protected class, then you’ve met the first two elements. And the third element is to proof that whatever justification your employer gives are not true but rather that the true reason for the adverse action against you was in fact, your age. Now, to do that, the third element is really where these cases are determined. And to do that you must show, essentially, that your employer has discriminatory enemies.

And unlike the race and gender context, where everyone knows and has been socially trained in the last 30, or 40, or 50 years not to, sort of, let those…Not to say something racist and not to let their bigoted ideas come out with sexism or racism, that’s not necessarily the case in age discrimination. Lots of people say things that are likely ageist without realizing that this is inappropriate and in fact, can be unlawful.

On the flip side of that coin, ageist statements might not catch your ear the same way a racist or a sexist statement would make you say, “Wow! I can’t believe someone just said that.” But that said, you may have heard somethings that indicate to you that you are in fact, the victim of age discrimination. And, sort of, comments like, “We need some young blood.” Or, “Older workers are computer illiterate.” Or, “The old guard doesn’t fit with the changing mood of this company.” Or something. Anything that makes a, sort of, generalization based on age can be combined with a bunch of other statements to show that you are the victim of age discrimination. So if you’ve been subject to an adverse employment action, and you’re over 40, think about those comments. And if you think there is some evidence of discrimination, that there’re true reasons behind an adverse action or proposed adverse action is age, I encourage you to investigate it and potentially speak with an attorney. Thanks.