How To Handle Unfair and Illegal Termination

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I received the following question from a reader of my columns:

“I am in my 50s and was fired with a lengthy and solid performance record. I was then replaced by a person with less experience, less education, at a higher salary, and I was asked to train this new employee.

“I agreed to train the person and work for the company as an independent contractor. I like the company and the employees, so I don’t want to cause a problem for any of them. But is what was done to me wrong?”

My answer: You sound like you have been taught to be polite, passive, and acquiesce to those in authority, regardless of how wrong their actions may be. Instead, you should be furious.

You have lost your job, your income, your benefits, your established authority in your job, and to worsen matters, you did nothing to deserve it. Please think about the time and likelihood of getting another job that offers you equal authority, benefits and job security with the same or better compensation.

When you file a discrimination lawsuit against a company and other employees involved in that wrongful termination, you are not filing only for yourself, but you also are protecting other employees from experiencing similar discrimination.

“A recent data analysis by ProPublica and the Urban Institute shows more than half of older U.S. workers are pushed out of longtime jobs before they choose to retire, suffering financial damage that is often irreversible.”

You may prefer to be agreeable and feel your employer is somehow justified in its actions, but although a person in their 50s is not old, age discrimination claims protect employees 40 years and older.

According to Patrick J. Boyd, owner of the Boyd Law Group, which represents Fortune 100 companies, small businesses and individuals in employment law matters and matters before the National Labor Relations Board, “When an employer makes a workplace decision based on your age instead of your skills, qualifications, or job performance, you likely have a strong case for age discrimination. Federal law and nearly all state laws specifically protect older employees from this type of employment discrimination.”

The federal Age Discrimination in Employment Act (ADEA) is the primary federal law that prohibits employers from discriminating against employees and applicants who are 40 years of age or older.

It is important to note that the requirements of the ADEA do not apply to all employers throughout the United States. Instead, the act only applies if your company or organization employs 20 or more employees. It’s also important to note that if the person replacing you is minimally over the 40-years age cutoff, that does not preclude you from having a viable claim.

(The ADEA does not apply to elected officials, independent contractors or military personnel.)

There are a number of ways an older worker may experience discrimination. To prove a claim under the ADEA, an individual can use direct evidence such as age-related comments and remarks made by those responsible for the decision. It is not necessary, however, to have direct evidence to have a strong case.

An individual can also prove his or her case by showing they are within the protected age group; that they were doing satisfactory work; that they were discharged or treated less favorably despite the adequacy of their work; and that the position was filled by employees younger than the age of the plaintiff.

If an individual can accurately present this information, an employer then has to show some legitimate, nondiscriminatory reason for the termination, such as poor job performance. You, as the plaintiff, must then show that the defendant’s reason is not the actual reason for the termination.

Yes, employers have been known to create false reasons for discharging a person in a protected group.

Damages can vary under state and federal laws. Under the ADEA, you can recover damages for lost earnings, loss of fringe benefits and loss of retirement benefits.

Also, employees cannot recover emotional distress damages nor punishment damages, but most states have enacted laws to provide for the damages that the ADEA does not cover.

Boyd says: “The quandary here is that this employee still has a chance to work, though the training is for a temporary period, so the damages of lost wages may be more limited. The liability, however, may be strong.

“What is absolutely true is that if this woman spoke out about ageism before being terminated (and then was fired) she would have a case for ageism and retaliation, and a stronger claim overall. The law absolutely encourages reporting of discrimination and protects those that oppose it.

“Tolerance of discriminatory treatment can hurt a person because it denies them the best protection under the law. It also, of course, allows discrimination to go unchecked and in that way hurts us all.”