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John
John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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I am age 60. I was targeted as I am the oldest in the sales

Customer Question

I am age 60. I was targeted for layoff as I am the oldest in the sales department. they even provided me with evidence of this. the others are 53, 49, and 59.
though I was given 9 weeks severance, that is hardly going to carry me to retirement.
performance was not an issue, though workforce reduction is company-wide and ongoing.
Do I have the basis for a claim? Is it my fault our business unit is failing?
thank you.
Rich Schinkowsky
Submitted: 1 year ago.
Category: Employment Law
Expert:  John replied 1 year ago.

You do have what is called a prima facie case of age discrimination.

What this means is you can meet the basic elements of a civil rights claim - which are 1) you are part of a protected class (are over 40 yrs old), 2) you are qualified for your job but treated adversely to similarly situated employees in the majority (i.e., substantially younger employees) and 3) suffered an adverse employment action. With this you can bring a charge and it is for the employer then to attempt to refute your allegations with a legitimate non-discriminatory reason for your termination. From your question it appears you have a good record and they otherwise cannot refute it. However, I have a couple concerns - a) did you release your rights to file a claim by signing an agreement for the severance pay (usually that is a condition of getting severance), and b) they can claim that perhaps your performance was lesser than the others or they perhaps have a non-discriminatory weighting system to decide who is layed off. Generally in a mass layoff/reduction in force there will be a non-discriminatory methodology in place to determine who is laid off, which you then would have to refute as it being a cause of discrimination.

So the answer to your question is yes you do have a basis for a claim, but the defense may not be easy (or may be impossible) to overcome...you'd only know that if you file a charge, which you an learn about here:http://www.eeoc.gov/employees/howtofile.cfm

Expert:  John replied 1 year ago.

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