Reverse age discrimination?

Q. I am 35 and work for a large computer software company. I recently read an article saying that in this economy lay offs might be affecting younger workers more than the older workers, because employers are afraid of laying off older workers for fear of age discrimination lawsuits. If I get laid off, could I have a claim of reverse age discrimination under federal law?

A. Not at this time. The Age Discrimination in Employment Act (ADEA) forbids discrimination against workers over the age of 40. The U.S. Supreme Court has interpreted the ADEA in a case called General Dynamics Land Systems v. Cline (2004), and decided that the ADEA does not allow for "reverse age discrimination claims." Unless the Congress changes the law, or unless the Supreme Court interprets the ADEA differently in another case, there is no federal claim for reverse age discrimination.

Sometimes state laws provide greater protections for workers than federal law. Oregon and New Jersey have allowed reverse age discrimination claims, so you may have protection under state anti-discrimination laws, depending on where you live.

Age discrimination?

Q. I worked as a technical manager for a home improvement store for more than 22 years before I was discharged at age 50. My employment record included favorable performance reviews, bonuses, and salary increases. Everything changed when a 33-year old became the district service manager. He commented unfavorably on my performance, rated me lower on performance appraisals, placed me on a performance improvement plan, and set a deadline for me to identify and organize equipment in a storage area. I was then informed that I was being fired because I failed to meet the deadline and displayed a "lack of ownership" of my responsibilities. Approximately two months before firing me, when I expressed concern about additional responsibilities being assigned to technical managers, he replied, "Hell, you are old enough, you have been around long enough, you should handle this." I've lost my job now, can they really do this?

A. In a similar lawsuit, one court found that a jury could infer age bias under the circumstances you describe because it reflects the boss' awareness your age, not merely your experience or time with the company. If the district manager was directly involved in the decision to fire you, it is possible that a jury could infer from his statement that he was more impatient with you because of your age and held you to a different standard than your coworkers because of your age.

To determine if age was the motivating factor in the discipline and firing, there would be a comparison of treatment of you and similarly situated employees, so it would be helpful to know if other employees in your job position had been treated differently as far as job standards, reviews, performance improvement plans, and termination. This would be a highly fact dependent analysis.