AGE RELATED DISCRIMINATION IS AGAINST THE LAW
Age discrimination is a creeping disease. It has reached epidemic proportions. Employers, with increasing intensity, are attempting to remove older employees from their work force. The excuses they offer for the termination of these older employees, who do not deserve the humiliation that must come from a termination after many years of acceptable performance are, in many instances, cruel. As in the case of an employee, in his early 50's, who worked for a company for 30 years, and was told he was being fired because the company did not believe, he was a “good fit.” Humiliation, as we unfortunately know, “murders the soul.” ( McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., N.Y.L.J. Sept. 11, 1997 at 25.)
The law does not require a smoking gun to confirm that age discrimination was practiced. The burden an employee has in order to establish age discrimination, as well as any form of discrimination, is not as stringent as the burden of proof required in other types of cases. Our courts have frequently held that discrimination, including, of course, age discrimination, can be established with circumstantial evidence. Circumstantial evidence is less than direct evidence, which includes witnesses or written proof. Circumstantial evidence involves making reasonable inferences based on the proof available.
As has been said in our previous blog entries, there will never be a memorandum written by top management saying, “let’s get rid of the older people.” However, there will likely be ample circumstantial evidence. One example would be if a company were to fire twelve people and replace them with twelve new people. Yet, the twelve people that were fired were all over forty and the twelve oldest in the office and all the new people that were hired were all younger. Moreover, this practice had been on-going for a number of years. It is then at that point one might make a reasonable inference, based on the circumstantial proof available that this particular company had a hostility toward older employees and may be engaging in the practice of age discrimination. In the field of employment law, circumstantial evidence can be very powerful in protecting the rights of employees in the workplace.
