How to Defend Yourself in an Age Discrimination Lawsuit

Three Methods:Finding Procedural or Technical DefectsShowing a Non-Discriminatory ReasonPreventing Future Lawsuits

Under state and federal law, employers cannot discriminate against employees over the age of 40 based on their age. Generally, to defend yourself in an age discrimination lawsuit, you must show that the job decision was based on a reasonable factor other than age.[1] Due to the complexity of age discrimination lawsuits, and in light of the fact that plaintiffs typically will have legal representation, you should consult an attorney with experience defending employers in discrimination lawsuits as soon as possible.[2]

Method 1
Finding Procedural or Technical Defects

  1. Image titled Have a Good Job Interview Step 9
    Determine whether administrative requirements were met. Typically an employee must file a charge with a state or federal administrative agency before filing a lawsuit.[3]
    • In age discrimination cases, it isn't always necessary for the agency to complete an investigation. However, the employee must receive written permission from either your state's agency or the Equal Employment Opportunity Commission (EEOC) to file a lawsuit.
    • If the employee does not have a right-to-sue letter from the appropriate agency, you typically can get the lawsuit dismissed.
    • Keep in mind that there are exceptions for age discrimination lawsuits. Specifically, filing an age discrimination claim under certain federal laws doesn't require the employee to get a right-to-sue letter, and if the employee is filing a lawsuit under the Equal Pay Act, he or she doesn't have to file a charge with an administrative agency at all.
    • If a right-to-sue letter is required, the employee only has 90 days after receiving that letter to file his or her lawsuit.
    • Check with your attorney if you're unsure whether the employee meets the administrative requirements to file a lawsuit.
  2. Image titled Find a Job in Dubai Step 6
    Analyze the court's jurisdiction. If the court does not have jurisdiction over the subject matter of the lawsuit or personal jurisdiction over you or your company, you typically can have the lawsuit dismissed.[4]
    • If the lawsuit is filed in a court located in a different state than the state in which your business is located or incorporated, that court may not have personal jurisdiction over the case.[5]
    • Generally, if the employee is alleging you violated federal anti-discrimination law, he or she must file the lawsuit in federal court.[6]
    • Keep in mind that jurisdiction-related objections may get the lawsuit dismissed, but they won't always make it go away entirely. Typically the employee can simply refile his or her lawsuit in a court that does have jurisdiction.[7]
  3. Image titled Resign Gracefully Step 2
    Check the date of the allegedly discriminatory incident. If the incident happened a long time ago, you may be able to get the lawsuit dismissed because the applicable statute of limitations has expired.
    • Statutes of limitations give plaintiffs a limited period of time to file a lawsuit after an incident occurs. These limitations also apply to filing administrative charges. The EEOC only allows an employee to file a discrimination charge within 180 days of your employment decision. Beyond that, if the employee receives a right-to-sue letter, he or she only has 90 days from the date on that letter to file a lawsuit.[8]
  4. Image titled Get Child Support Step 7
    Consider mediation. Using a third-party mediator to facilitate a settlement is a non-adversarial and confidential way to resolve an age discrimination lawsuit.
    • The EEOC has a mediation program that may be available for you to use to resolve the dispute. Use of the program is voluntary and free of charge to all participants.[9]
    • If you come to a settlement through mediation, it generally is not considered an admission on your part that you discriminated against any employees or violated any state or federal laws.
    • Because the proceedings and the outcome are confidential, using mediation can keep workplace gossip about the lawsuit to a minimum.

Method 2
Showing a Non-Discriminatory Reason

  1. Image titled Get Child Support Step 13
    Produce written anti-discrimination policies. If you have addressed age discrimination in your employee handbook or other written company policies, these can serve as evidence that you were aware of your responsibilities under state and federal law.
    • Be prepared for the employee's attorney to request copies of these policies, as well as personnel records, during the pre-trial discovery process.[10]
    • You also should be able to demonstrate that managers, supervisors, or anyone with authority to make employment-related decisions is familiar with the requirements of state and federal anti-discrimination laws.
  2. Image titled Succeed in Network Marketing Step 5
    Evaluate the requirements for the job. Age cannot be listed as a requirement for a job unless it can be considered a bona fide occupational qualification.[11][12]
    • In any written job descriptions, look for certain "trigger words" that may indicate a preference for younger employees over older employees in that position.
    • If there are skill tests or physical requirements for the job, make sure they are necessary to perform specific job duties – not just a smoke-screen for an actual age preference. For example, if you have listed as part of a job description that the employee must be able to repeatedly lift 100 pounds over his or her head, this could be considered unnecessary if employees in that position sit at their desks all day and never lift anything heavier than a piece of paper or a pencil.
  3. Image titled Get Power of Attorney Step 8
    Provide proof of the reasons for the job decision. To defend yourself against an age discrimination claim, you must show that the employment decision was based on factors unrelated to the employee's age.
    • Keep in mind that it's typically difficult for an employee to provide direct evidence that the employment decision was made because of his or her age.[13] This difficulty benefits your defense as long as you can show sufficient other reasons for making the decision.
    • For example, suppose you have an employee who alleges age discrimination because she was terminated and a younger employee took her place. That in and of itself is not enough for her to prove age discrimination, however. Your records of poor performance or multiple disciplinary actions, on the other hand, would prove you had sufficient non-discriminatory reasons to terminate her employment.
    • Gather any written documents such as emails where the employment decision was discussed. The plaintiff likely will request copies of this correspondence during pre-trial discovery.[14]
  4. Image titled Handle an Employee's Attendance Problems Step 2
    Demonstrate a connection between age and the job's core functions. You are allowed to consider age in making an employment decision provided the age limitation is necessary for employees to perform essential job duties.[15]
    • This defense is known as the "bona fide occupational qualification" exception. To prove it, you must show that no person in the group you're discriminating against could possibly perform the job.[16]
    • Have your attorney look over the job qualifications you're using and determine whether it falls under this exception.
    • For example, airlines are allowed to require pilots to retire at a certain age due to safety concerns with elderly pilots.
    • Unless the connection is well established in your trade, you probably will need expert witnesses to testify as to the inability of older people to perform the job in question.
  5. Image titled Succeed in Network Marketing Step 16
    Prove the decision was based on a "reasonable factor other than age." If the lawsuit relies on a disparate impact theory, in which the employee alleges that a seemingly neutral policy nevertheless has a disproportionately negative effect on older employees, you can escape liability by proving the decision was based on non-age factors.[17]
    • This defense is available only in these disparate impact cases, and is something you must prove. If you meet your burden of proof, the plaintiff can only win his or her lawsuit with direct evidence that you intentionally discriminated on the basis of age.
    • You must show that the factor upon which your decision was based is related to your business purpose, and that you assessed the decision's potential impact on older employees and took steps to mitigate any disproportionately negative impact.
    • In "disparate impact" cases, providing managers objective criteria through which to assess employees is crucial. Keep in mind that factors such as "flexibility" or "willingness to learn" often are considered by the courts to be euphemisms for youth.

Method 3
Preventing Future Lawsuits

  1. Image titled Be Knowledgeable Step 12
    Check the language in job advertisements carefully. When advertising an open position, you should avoid words or phrases that indicate you prefer younger employees.[18]
    • Be careful with words that might be considered euphemisms for youth. For example, stating that you want to hire a "recent college graduate" typically is understood to mean you are looking for someone in their early- to mid-20s. Instead, describe the job as "entry level" to indicate that you're looking for someone who's just starting out in your business, regardless of his or her age.
    • Focus your requirements on skills, education, and experience rather than benchmarks that could be tied to age. If it's important to you that someone recently graduated because you want the information learned to be recent and up-to-date, you should advertise for someone who keeps abreast of issues and developments rather than a recent graduate.
    • You also should review any printed job applications you have and remove any lines or questions that relate to an applicant's age. If there is a minimum age that is legally required for a job, you can ask the applicant to verify that he or she is at least that age without asking for the applicant's exact age.
  2. Image titled Communicate Effectively Step 7
    Train managers and human resources employees on age discrimination. Anyone making employment decisions should have limited discretion in evaluating employees subjectively.[19]
    • Provide specific objective criteria for assessing new hires or candidates for retention or promotion. Keep in mind that some criteria such as "flexibility" are loaded terms that can easily be interpreted to mean you prefer younger employees.
    • Make sure anyone who interviews employment candidates isn't mentioning age or anything else such as race, religion, or ethnicity during job interviews. If the candidate mentions any of these characteristics, the interviewer should simply make a note that it was mentioned by the candidate, but not remark on it to the candidate.
  3. Image titled Be Debt Free Step 3
    Evaluate policies and practices for disparate impact. Any new employment requirements or decisions regarding groups of employees cannot have a disproportionately negative effect on older employees.[20]
    • For example, if you're making a decision to lay off a certain number of workers in a department, your criteria for deciding which employees to keep and which to lay off generally shouldn't result in more older workers being laid off than younger ones.
    • You can run employees through your criteria hypothetically to analyze the impact. If the criteria result in a significantly larger number of older employees being laid off than younger ones, figure out how you can lessen that by changing your criteria.
    • If the disparate impact is unavoidable, make sure you document the business purpose of the policy or practice in a specific way.
  4. Image titled Handle an Employee's Attendance Problems Step 4
    Include written anti-discrimination and harassment policies in your employee handbook. Make sure your policies address age discrimination and discuss the acts that are forbidden by law.[21]
    • Give written handbooks to all employees. If you update a discrimination policy, provide a written memo with the changes to all employees.
    • Your written policies should stress that they supersede any oral statements to the contrary by managers or other staff.
    • In addition to the handbook, find other ways to make sure employees are informed of your anti-discrimination policies and know who is designated to handle complaints of discrimination.
    • For example, you may want to provide training seminars to educate employees, including managers and supervisors, about the protections of anti-discrimination laws and how to identify discriminatory acts or practices.
  5. Image titled Be a Good Debater Step 10
    Maintain thorough documentation. Written documentation of steps taken to investigate or resolve any age discrimination complaints is essential to defense against an age discrimination claim.[22]
    • Have anyone interviewing an applicant take written notes during the interview so you have a written record of anything communicated to a candidate.
    • If an employee complains about a discriminatory incident, investigate it promptly and document your investigation in writing. These documents can later prove your actions if the employee tries to say he or she complained and nothing was done.
    • Any written documentation that potentially could help you in a discrimination lawsuit should be kept indefinitely. When in doubt, print copies of emails and place them in a file – particularly if you have software that deletes old emails after a period of time.[23]

Sources and Citations

Show more... (20)

Article Info

Categories: Civil Litigation