How Can I Prove Age Discrimination?

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What Is Age Discrimination in Employment?

In 1967, to combat the problem of age discrimination in employment, Congress passed the Age Discrimination in Employment Act (“ADEA”). The ADEA was enacted in order “to ensure that hiring decisions are based on objective evaluations of individuals’ potential for job performance, rather than on misconceptions about the effects of age on ability.” Note, The Age Discrimination in Employment Act, 90 Harv. L. Rev. 380, 381 (1976) (citing 29 U.S.C. § 621(b)). Specifically, the ADEA provides that

[i]t shall be unlawful for an employer⁠—

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with [the ADEA].

29 U.S.C.A. § 623(a).

The ADEA covers employers with at least 20 employees; all governments, including federal, state, and local governments; employment agencies; and labor organizations. See 29 U.S.C.A. § 630(b); see also Mt. Lemmon Fire Dist. v. Guido, 139 S. Ct. 22, 27 (2018) (citing id.).

The ADEA created a private right of action for victims of age discrimination. Specifically, “[a]ny person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of [the ADEA] . . . .” 29 U.S.C. § 626(c)(1). However, “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission [(the “EEOC”)].” 29 U.S.C. § 626(d)(1). A charge must be filed with the EEOC within 180 calendar days from the day the discrimination took place, unless there is a state law prohibiting age discrimination in employment and a state agency or authority enforcing that law, in which case the deadline is extended to 300 days. 29 U.S.C. § 626(d)(1)(A)-(B). Filing a charge gives the EEOC the right to investigate and file an enforcement action. If the EEOC declines to make a finding of discrimination, it will send a “right to sue letter.” After receiving this notice, the individual has the right to file a lawsuit “within 90 days after the date of the receipt of such notice.” 29 U.S.C. § 626(e). For more information on applicable deadlines and filing a charge with the EEOC, please visit

How Do You Prove Age Discrimination in Employment?

After a lawsuit is filed, federal courts engage in a “burden-shifting analysis” to determine whether age discrimination has occurred. First, the plaintiff-employee must establish a prima facie case of discrimination against the defendant-employer. See Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973)). “To establish a prima facie case of age discrimination, a plaintiff must show that: ‘(1) the plaintiff is at least forty years old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff was qualified for the position in question; and (4) the plaintiff was ultimately replaced by another employee who was sufficiently younger so as to support an inference of a discriminatory motive.’ When a plaintiff is not directly replaced, the fourth element can be satisfied if a plaintiff points to facts relating to the adverse action that, ‘if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.’” Johnson v. Phila. Hous. Auth., 218 F. Supp. 3d 424, 434 (E.D. Pa. 2016) (quoting Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015)). “Satisfying the prima facie elements creates an ‘inference of unlawful discrimination.’” Willis, 808 F.3d at 644 (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999)).

Second, “[i]f the plaintiff succeeds in establishing a prima facie case, the burden shifts to the [employer] ‘to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.’” Jones v. Sch. Dist. of Phila, 198 F.3d 403, 410 (3d Cir. 1999) (quoting Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)). “This second step . . . does not require that the employer prove that the articulated legitimate, nondiscriminatory reason was the actual reason for the adverse employment action.” Willis, 808 F.3d at 644. Rather, the employer only has to provide enough evidence to “allow the factfinder to determine that the decision was made for nondiscriminatory reasons. Id.

Third, “[i]f the employer satisfies this second step, the burden shifts back once more to the plaintiff to show, by a preponderance of the evidence, that the employer’s proffered legitimate, nondiscriminatory reason was pretextual.” Id. (citing Burton, 707 F.3d at 426-27). There are two ways a plaintiff can do this. On the one hand, the plaintiff can “point to evidence that would allow a factfinder to disbelieve the employer’s reason for the adverse employment action.” Id. (citing Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). “In order to raise sufficient disbelief, the evidence must indicate ‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons’ to satisfy the factfinder that the employer’s actions could not have been for nondiscriminatory reasons.’” Id. (quoting Fuentes, 32 F.3d at 765). On the other hand, the plaintiff can “point to evidence that would allow a factfinder to believe that an invidious discriminatory reason was ‘more likely than not a motivating or determinative cause’ of the employer’s action.” Id. at 645 (quoting Fuentes, 32 F.3d at 764). “Specifically, the plaintiff can show pretext this way by presenting evidence ‘with sufficient probative force’ so as to allow the factfinder to ‘conclude by a preponderance of the evidence that age was a motivating or determinative factor.’” Id. (quoting Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644-45 (3d Cir. 1998)). For example, the plaintiff could show that “(1) the [employer] previously discriminated against the plaintiff; (2) the [employer] discriminated against others [over forty years old]; or (3) the [employer] has treated similarly situated, substantially younger individuals more favorably.” Id. (citing Simpson, 142 F.3d at 645).

How Are Age Discrimination Victims Compensated?

A successful plaintiff in an ADEA case may be entitled to recover back pay damages and reinstatement to prevent future lost wages. See Briggs v. Temple Univ., 339 F. Supp. 3d 466, 507 (E.D. Pa. 2018) (citing 29 U.S.C. § 626(b)). If reinstatement is not possible, “such as where there is no position available or the ‘relationship between the parties [is] so damaged by animosity that reinstatement is impracticable,’” then “courts typically allow for front pay damages instead.” Id. (citing Maxfield v. Sinclair Int’l, 766 F.2d 788, 796 (3d Cir. 1985)).

Contact the Experienced Employment Discrimination Attorneys at Folkman Law Offices, P.C.

If you or a loved one has been the victim of age discrimination in employment, you need the services of an experienced employment discrimination lawyer. Contact Folkman Law Offices, P.C. to schedule a free consultation to discuss your case by calling 856-354-9444, or submit an online inquiry. Our offices are conveniently located in Cherry Hill, New Jersey and Philadelphia, Pennsylvania to assist clients throughout the area.