A 20-something calls> you old man. Or, your boss only asks the under-30 set for input when the meeting turns to Twitter. Or maybe you ve been passed over for a promotion in favor of a younger worker, or let go--you suspect--because of your age.
With a tight job market and more workers postponing retirement, aging in the workplace has only gotten harder. Beyond the stress of shrinking staffs and the threat of layoffs, older employees increasingly report feeling marginalized, simply because of their age. Now, a record number are taking their complaints to authorities: Age discrimination claims have increased 61% over the past decade, according to the Equal Employment Opportunity Commission (EEOC).
For workers who feel persecuted, bringing a lawsuit has the appeal of righteous vindication and it can feel like the only option. But legal action is rarely as satisfying as it seems. While the legal system does protect workers from discrimination based on their age, the burden of proof is extremely high. Most cases do not have a smoking gun, says Laurie McCann, a senior attorney with AARP Foundation Litigation, adding that few cases even get past the beginning stages. Even if they do, justice is rarely swift. The courts are backlogged, says Randall Leff, a partner at Ervin, Cohen & Jessup. These cases can take years.
On top of that, it s often expensive. The EEOC takes only a handful of cases to court, but most of the time, it simply offers what s called a Notice of Right to Sue, which means you re welcome to hire your own lawyer. Most plantiffs lawyers will take these cases on a contingency fee (usually about 40% of any money rewarded to you), which means in the best case scenario, you win the case and owe your lawyer hundreds of thousands of dollars, says Ron Chapman, an employment lawyer with Ogletree, Deakins, Nash, Smoak & Stewart. That's a big chunk of money, and it should cause prospective plaintiffs to consider whether going through a lawsuit is worth it, Chapman says.
But discrimination is against the law. If you ve been harmed and you can prove it, it can be worthwhile to sue. To show they ve been treated unfavorably in hiring, promotion, termination, or another area of employment, because of their age, potential plaintiffs need tangible evidence, including dates, times, people involved, offending comments or actions, notice of termination, witnesses, statistics on the company s hiring, promotion or firing patterns, and more. And as if that wasn t tough enough, you have to show that age was the key factor in your boss decision not just one factor. Considering that numerous motivations usually go into employment decisions, this is particularly difficult. It s not necessarily what happened, it s what you can prove, warns Leff.
Cases with high chances of success have certain things in common, though. They usually involve long-term employees who have had success at the company, experts say, and where broader statistics can demonstrate a discriminatory impact. Long-time employees can show a history of solid performance, which carries a lot of weight with a jury. Even if you didn t save all those performance reviews or don t have the stats that show your work, but you know the company has them, your attorney can ask for them in the discovery phase of your case.
Still considering a lawsuit? Here are four things to do before you call a lawyer.
Get a reality check
Before you make a complaint, bounce your case off a mentor or a seasoned professional you trust, says certified career coach Hallie Crawford. Talk through the evidence you have for the claim, how rampant or blatant the discrimination is, and what effects it is having on you. Together, lay out the facts and determine if you ve got something solid to present.
Talk to your boss
If you re still employed, take the case to your supervisor first. This is a conversation, not a confrontation, so ask for a private meeting and start informally, say, with a statement about how you appreciate your job, which confirms your commitment to the employer. Then clearly state the facts, McCann says. If the conversation gets tense and it might consider asking whether there are other reasons for what you re experiencing. This can help diffuse hostility and make it feel like a team effort to solve the problem, says Crawford.
Go to human resources
If the talk with the boss doesn t take care of the issue, or if the boss is the problem, you ll need to talk to HR. They want to prevent lawsuits, says Chapman, so raising your concerns may quash the issue. If verbal meetings don t help, put your complaint in writing.
File a claim
If you ve gone through these steps and the discrimination persists, or if you were fired due to your age, you may want to file an age discrimination claim. You can file claims with the EEOC either by mail or in person, and it s easy to do, says Leff. Often, the EEOC will help you settle the case or recommend mediation proceedings between you and your employer.
Just remember that you don t have long to file age discrimination claims - 180 days from when the discriminatory act took place, unless your state also has age discrimination in employment laws most do in which case this timeline can be extended to 300 days. And keep in mind, it can take an average of six months for the EEOC to investigate and decide if there s a legal violation.