Workers who gain experience and knowledge that helps them do their job better every year deserve to be recognized.  Unfortunately, some dedicated and experienced workers in fifties, sixties, and seventies would like to move up in their company or agency, but hit up against a glass ceiling.  Executives bring in younger workers or recent graduates for management jobs.

The glass ceiling can be illegal.  Refusing to promote a worker because of their age violates the Age Discrimination in Employment Act.  So does paying them less, failing to consider them for the best assignments or transfers, or harassing them or treating them badly because of age. 

Proving that there is a glass ceiling in a workplace can be difficult.  Workers do not always know what goes on behind closed doors, although they may hear co-workers or the boss use stereotypes about the young, smart, tech-savvy, energetic employees, or hear them harass older workers or make up reasons to give older workers bad ratings or accuse them of violating the rules.

But courts make it possible to prove age discrimination even as someone who never became the boss.  They often shift the burden to the employer to prove that it did not discriminate against workers on the basis of age.

To take advantage of how the courts shift the burden of proof, an employee has to show some basic things.  First, they should be in the protected age group, which is those aged at least 40.  Second, they should be qualified to do the job they were fired from, not promoted to, or not properly considered for as an applicant or potential transfer.  To show he or she was qualified a worker does not need to have been perfectly suited to the job.  Instead, he or she needs to have “the basic skills necessary for the performance of the job.”  Third, he or she must be fired, not hired, not promoted, not given a raise of beneficial transfer, or other “adverse employment action.”  Fourth, it should be reasonable to believe that age discrimination was connected to the thing that happened, for example because someone at the employer made comments suggesting this, or because there is statistical or other evidence that people age 40 were treated worse. 

If these things can be shown, the burden will be the employer to explain “some legitimate, nondiscriminatory reason for” what happened.  Assuming that the employer can produce such a reason, the employee has the burden to persuade the court that this reason was a “pretext.”  

One fact pattern that may be age discrimination is when an employer has a history of demoting or firing older workers, or treating them so badly that they often quit in frustration.  Some employers fire two out of three or one out of two older workers in a department, leaving the younger employees in place.  The courts may assume that there is enough evidence of discrimination for an employee to win an age discrimination case in such instances. 

If you have reason to suspect that you have lost your job or are being treated differently because of your age, you may benefit from a free consultation on age discrimination.