Proving age discrimination has never been an easy thing to do, let alone proving age discrimination. There is a common misconception that being terminated at the age of 40 or above is grounds to file a wrongful termination based on age discrimination. However if this were all that is need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be ridiculous.
So what is needed to prosecute a lawsuit for age discrimination? InStephens v. Coldwell Banker Commercial Group, Inc. the First Appellate District offers useful direction. The court analyzed the jury’s verdict by noting that in most employment discrimination cases, lack solid evidence of the employer’s intent to discriminate or it is difficult to disprove, and so an indirect method of proof is necessary. Thus, in order to initiate a claim for age discrimination the employee has responsibility to prove that not only was he/she over 40 but also, that he/she was performing adequately, and was fired or demoted due discrimination. After the initial case is presented, the employer has to prove that the plaintiff was terminated or demoted for valid, non-discriminatory reasons. At which point the plaintiff will then be given the opportunity to prove that the employer was motivated by discrimination or that the employer’s explanation for termination or demotion is no more than a smoke screen for discrimination. It is now the employer turn to do its best to show that they have a reasonable explanation for taking action against the employee. The employer can claim the reasons for their actions are: performance related, misconduct, insubordination or even reduction in force. Often time’s employers try to justify the termination by stating poor performance due to its subjective nature; law allows the employer discretion when determining if they are satisfied with the employee’s performance. Although employer argues that the employee wasn’t a good employee it doesn’t mean the employer wins the case.
There are few things the employee can present to the court to show that the employers claims of poor performance are refutable.
1. Length of employment will be a big determining factor in showing that the employee was likely not terminated because of poor performance. The augment is “Why did you keep this employee for so long if they were performing poorly?”
2. Documentation of good performance, such as promotions, awards, bonuses, positive performance reviews etc.
3. The most beneficial information you could present would be proof that a younger person was given your position or promotion.
Lastly, age discrimination can be shown in the form of statements that show the employer making issue of the employee’s age. Or suggesting the employer wanted older employee out, for instance encouraging the employee to retire, by asking about the employees plans for retirement OR calling names such as “old times,” “father,” “old man,” “grandpa” and alike.
If you feel that you have been a victim of age discrimination you should contact an experienced California labor law attorney to discuss your case.