By: Nathan Davidovich
Copyright: Copyright (c) July 2018

If you are facing a situation where you have been terminated from your job because of a reduction in force (RIF) , an analysis should be made as to whether or not your employer’s choice of yourself as part of the downsizing was motivated, in whole or in part, by any discriminatory reasons. Even though business necessity might force employers to reduce their workforce, such business necissity does not allow them to discriminate, in violation of Federal or state law, in the process of selecting those employees to be downsized.


Since many older workers are also being paid higher salaries paid by their employer, the older worker may become a logical target by the employer. If the employer’s selection criteria target only older workers, there may be a violation of the Federal Age Discrimination in Employment Act (ADEA). Even if the employer has the best of intentions, and has no intention to discriminate on the basis of age, the actual fact of the selection process may result in age discrimination.


The purpose of this article is to highlight some of the general provisions of age discrimination, as they might apply to a reduction in force. However, each individual case must be evaluated in accordance with the facts in that case. Therefore, this article is not intended to provide legal advice specific to any case. I therefore recommend that you consult with an employment attorney of your choice for specific advice regarding your situation.




Under the ADEA, it is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age. A claim of age discrimination under the ADEA can be proven by either direct or circumstantial evidence. One can also prove discrimination through direct evidence by establishing proof of an existing policy which itself constitutes discrimination. In other cases, the affected employee may seek to prove discrimination through circumstantial evidence.


Age discrimination is the process of making decisions affecting an employee based wholly, or partly, upon the age of the employee. Age discrimination can take many different forms. There are basically 3 different types of a RIF that might be indicative of discrimination. They are, individual disparate-treatment claims, group disparate-impact claims, or pattern-or-practice claims.


The individual disparate-impact claim involves action directed against a single individual, who is subject of the RIF, but does not involve a broader sweep of the brush of discrimination. A disparate impact-claim may consist of age related comments made to or about the affected employee, by managers or executives, involved in the decision to RIF the individual, before or accompanying the downsizing.


A disparate impact claim against a group of employees may consist of situations in which there are age related comments made to or about older employees, by managers or executives, involved in the decision to put a RIF into effect, before or accompanying the RIF.


A pattern or practice claim involves a RIF where there are no comments to which one can point, made before or accompanying the downsizing, but there is a pattern that older workers are treated differently. It may consist of being selected for reductions in force, while at the same time, younger employees, with less experience, are retained.


The key in determining whether you have a claim under the ADEA is whether the comments about age, or the age discriminatory actions, in fact were the reason, or part of the reason, for your termination. In other words, can you say that the termination would not have occurred but for the discrimination?




The U.S. Court of Appeals for the 10th Circuit, in Beaird v. Seagate Tech., 145 F.3d 1159, 1165 (10th Cir. 1998) set forth the following criteria for an employee who has been the subject of a RIF:


(1) that she is within the protected age group;
(2) that she was doing satisfactory work;
(3) that she was discharged despite the adequacy of her work; and
(4) that there is some evidence the employer intended to discriminate against her in reaching its RIF decision.


See also, Finney v. Lockheed Martin Corp., 654 F. App’x 943, 945-46 (10th Cir. 2016).




After an employee has satisfied his burden of establishing a prima facie case of discrimination, the burden of production shifts to the employer “to articulate some legitimate, non-discriminatory reason” for its termination decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).




Once the employer has done so, the burden shifts back to the employee to show that the proffered reason is pretextual. Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1279 (10th Cir. 2010). How is that done?


A plaintiff may establish pretext by showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons.” Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005).




In RIF cases, an employee can show pretext by presenting evidence that one of the following occured:


(1) his own termination does not accord with the RIF criteria;
(2) Defendant’s RIF criteria were deliberately falsified or manipulated
in order to terminate him; or
(3) that the RIF generally was pretextual.


See Finney v. Lockheed Martin Corp., supra, and Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1193 (10th Cir. 2006).




The fact that you are over age forty and have been fired due to downsizing does not necessarily mean that you have been the victim of age discrimination. In practice, there is no black and white rule by which you can decide if age discrimination has occurred in your situation. Unless you have an employment contract that limits an employer’s right to fire you, employers have the right, in Colorado, to fire employees of any age, as long as the decision is not based upon discriminatory or other impermissible factors. I recommend that, if you in any way suspect that you have been a victim of age discrimination, you should immediately arrange for a consultation with a knowledgeable employment attorney. After reviewing the facts of your case, and researching the legal decisions with similar fact patterns, a seasoned attorney will be able to give you an opinion as to whether your termination was the likely result of age discrimination.


Prompt consultation with an attorney is extremely important due to various laws that require you to take certain action within a certain period of time after the occurrence of discrimination. Failure to act in a timely manner may result in loss of your rights to recover, even if you can prove the existence of discrimination. Also, with the passage of time, valuable evidence can be lost and the memories of witnesses may fade.




In order to preserve your claim, there are strict time frames that you must follow. In order to obtain the right to sue in federal or state court you must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). In Colorado, that charge must be filed within 300 days of the alleged act of discrimination. Many states, such as Colorado, have a law that prohibits age discrimination in employment and authorizes a state agency to grant relief. In such cases, the charge must be filed, with the Colorado Civil Rights Division, within 180 days of the date of discrimination. If you do not file either of these charges within the required time period, you will probably be prevented from further pursuing your rights. On an ADEA claim, different from other discrimination charges, where a right-to-sue letter must be issued by the EEOC, before the filing of a private action, a private lawsuit may be filed after the Charge has been pending for 60 days.


Failure to follow the required time periods may cause you to lose your rights to seek a remedy for age discrimination under the ADEA. If a right-tosue letter is issued by the EEOC, a lawsuit on an age claim must be filed within 90 days after the receipt of such letter.


Because of the intricacies of the various time barriers, it is most important to consult with an experienced employment lawyer, who will be able to guide you through this maze. I make this recommendation despite the fact that you do not need a lawyer to file a Charge with the EEOC. However, my experience has taught me that it may be a serious mistake to try to proceed on your own, even as to the initial filing of a charge. If you fail to include certain allegations, you may be prevented from bringing them up in a later lawsuit.




Under the ADEA, an employee who has been a victim of age discrimination as a result of a RIF, may recover back wages and benefits, reinstatement to the former position, attorney fees and court costs. If the discrimination was intentional and willful, the employee may be awarded liquidated damages in the same amount as the lost back pay and benefits. Damages may be recovered for the time period of up to two years before filing suit, or up to three years in cases of willful violations of the ADEA. If the employee, for valid reason, cannot be reinstated, the court may award a dollar amount for future loss of earnings and benefits, calculated over a set number of years. Having said that, one must realize that, wherever possible, courts prefer reinstatement instead of awards for future losses. In an ADEA case, unlike other cases of discrimination, there is no recovery for emotional distress, or punitive damages. Depending on your individual circumstances, you may be entitled to additional recoveries under state, rather than federal, law.




The United States Supreme Court has ruled that the Eleventh Amendment to the U.S. Constitution grants immunity to a state or state agency from claims under the ADEA. That means that if you are employed either by a state, or a state agency or a state university, you will not be able to claim damages under the ADEA. However, most states, including Colorado, have their own age discrimination statutes that will provide relief. It is important to remember that each state has its own statute of limitations (time during which a claim may be brought) and procedural requirement for filings such a claim, and your claim may be barred unless you comply with these laws.




There are many more intricacies involved with the ADEA than have been discussed in this article. Although this article highlighted age bias in the context of a RIF, the procedures in executing the RIF must be measured against other areas where discrimination is prohibited, and if discrimination has occurred, there may be available remedies to contest the RIF or its effects. Learn more about protecting your rights by selecting a competent lawyer to represent you.


Nathan Davidovich practices employment law in the state of Colorado, and he is available for consultation on any matters arising in the State of Colorado. Please contact Nathan Davidovich by email or by telephone, at the address below, to discuss his fees and to schedule a consultation.


Nathan Davidovich, Attorney at Law
Davidovich Law Firm, LLC
3773 Cherry Creek North Drive
Suite 575
Denver, Colorado 80209
Phone: 303-586-6915/(303) TALK-LAW
Web Site:

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