Legal background

To bring an age-discrimination case under the federal law, an employee must first establish a “prima facie case,” a set of facts that, in the absence of evidence to the contrary, would suggest to a reasonable juror that discrimination probably took place. In response, the employer may of-fer an alternative, legitimate explanation for a layoff, such as an RIF program to reduce costs.

Next, the employee must produce evidence, such as internal memos or comments made by

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the employer, to show that an employer’s purported reason for dismissal was just a pretext. In

this way, the burden of proof passes back and forth between the two sides.


Protecting yourself

Age discrimination is a reality in the workplace, but it is often difficult to say whether a particular dismissal was based upon age alone, an RIF program, or the employee’s lack of competence. A good risk management program seeks to avoid these ambiguities by taking specific steps.


First, adequate documentation, especially of disciplinary action, is as important in employment situations as it is in clinical situations. Records should be complete enough to allow actions to be reconstructed during testimony, if necessary.


Regular performance reviews can be helpful, too. In assessing performance, they provide evidence of improvement or deter-ioration. Although they tend to be subjective, performance reviews do establish how an employee is doing over a period of time.


For example, if an employee’s record shows a pattern of poor attendance and poor performance, then disciplinary action or dismissal is more justifiable to a court or outside agency than it would be in a case where the employee has an excellent record marred only by an isolated incident or bad review.


In addition, an employee can keep a separate personal file documenting records for later use. Pertinent e-mails detailing events of record can be copied and kept to support the facts.

From an older employee’s standpoint, age discrimination is always a possibility but difficult to prove. Typically, discrimination may be evident when a better qualified but older employee is passed up for promotion in favor of a younger, less experienced candidate. Similar considerations apply when employees laid off in an RIF program are mainly the older and better-paid staffers.


In both of these situations, a manager’s offhand comments can indicate that discrimination is taking place. Discrimination is rarely explicitly documented in an employee’s file, and the lack of documentation must be overcome for a successful lawsuit.