ADEA: Your Age and Your Job

By: Nathan Davidovich
Copyright: Copyright (c) July 2018
Despite our economic upturn, a growing number of workers, over the age of forty, find themselves replaced by younger workers. In 2017, 18,376 age-related employment complaints were filed with the Equal Employment Opportunity Commission, which represented 21.8% of all discrimination complaints filed with the EEOC in 2017. The majority of the cases involved either layoffs or dismissals. Older workers are often the most likely to go, because of their higher pay and the expectation that they will generate higher health costs.
The Age Discrimination in Employment Act (ADEA), is a federal law which prohibits employers from discriminating on the basis of age. An employee is protected from discrimination based on age if he is over 40. If you feel that you have been a victim of age discrimination, it is important that you know your legal rights, and the actions you must take to prevent loss of your rights to a remedy. This article is not designed to provide legal advice or render legal opinions for specific situations. The law in other states may vary from Colorado on these issues. For specific legal questions, contact the attorney of your choice. If you wish to consult with the author on any matter relating to Colorado employment issues, you may contact him at (303) 825-5529 or by email at


The ADEA makes, “it is unlawful for an employer . . . to fail or refuse to hire or 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.” Under the ADEA, employers must evaluate older employees on their merits and not their age. It is important to realize that the termination of an employee over age 40, does not, standing alone, give rise to an inference of discrimination. Colorado is an at-will employment state, which allows employers the freedom to terminate at-will employees for any reason, as long as it is not unlawful. Therefore, in order to prevail under the ADEA, the employee, who has the burden of proving his/her case, must prove that age was the reason that the employer decided to act, or, in other words, that age was the ‘but-for’ cause of the employer’s adverse decision. In other words, age was a determinative factor in the termination. This may be proven either by direct or circumstantial evidence of agebased discrimination.
Age discrimination is the process of making decisions affecting an employee based wholly, or partly, upon the age of the employee, except in those cases where age is a bona fide occupational qualification. Age discrimination can take many different forms. It can consist of age related comments made by managers or executives, followed by some type of adverse employment action or decision orchestrated by such managers. Such action might include a failure to promote, less favorable employment conditions, disciplinary proceedings, layoff or termination. It may consist of situations in which there are no comments to which one can point, but there is a pattern that older workers are treated differently. It may consist of being selected for a reduction 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 the determinative factors, which made a difference, for the adverse employment action.


In pursuing a lawsuit alleging age discrimination, in violation of the ADEA, once the administrative requirements have been met, the Plaintiff must first establish what is called a “prima facie” case. A prima facie case of age discrimination requires the plaintiff to show that he or she was: (1) within the protected age group (40 or older); (2) performing satisfactory work; (3) terminated from employment; and (4) replaced by a younger person. See, for example, Branson v. Price River Coal Co., 853 F.2d 768 (10th Cir. Utah 1988).
In order to make out a prima facie case, a plaintiff is not required to show that he or she was replaced by someone under forty. At the same time, the United States Supreme Court, in O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 116 S. Ct. 1307 (1996) has said that an inference of illegal discrimination “cannot be drawn from the replacement of one worker with another worker insignificantly younger,” citing the replacement of a 40-year old by a 39-year-old as an example. Courts have taken that statement to require a plaintiff to show that his replacement was “substantially younger.” The United District Court for the District of Colorado, held in Bortles v. Boulder Valley Sch. Dist. No. RE 2 , 2014 U.S. Dist. LEXIS 807 (D. Colo. 2014) that the standard of what “substantially younger” means is not exactly clear, but age differences of ten or more years have generally been held to be sufficiently substantial.
Once the plaintiff has established a prima facie case of age discrimination, the employer must advance legitimate, non-discriminatory reasons for its actions. Once that is done, the burden shifts back to the plaintiff to establish “pretext”. In order to do that, plaintiff must offer evidence revealing “weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action [such] that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reason.” See, Garrett v. HewlettPackard Co., 305 F.3d 1210 (10th Cir. 2002).


In practice, there is no black and white rule by which you can decide if age discrimination has occurred in your case. The fact that you are over forty and have had an adverse employment experience does not necessarily mean that you have been the victim of age discrimination. Employers have the right to discipline and 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, a seasoned attorney will be able to give you an opinion as to whether any adverse employment action was the “but for” cause of age discrimination. Prompt consultation with an attorney is extremely important due to various laws and regulations 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).That charge must be filed within 180 days of the alleged act of discrimination. Many states, such as Colorado, have a law, which prohibits age discrimination in employment and authorizes a state agency to grant relief. In such cases, the charge must be filed, with the EEOC, within 300 days of the last act of discrimination, or sooner in certain instances. If you do not file an EEOC charge within the required time period, you will probably be prevented from further pursuing your rights. Failure to follow the required time periods may cause you to lose your rights to seek a remedy for age discrimination under the ADEA. Following the completion of the EEOC investigation, or upon request, prior to such completion, following a minimum period of time after filing the EEOC charge, the EEOC will issue a Right to Sue Letter. Upon receipt of such a letter, a lawsuit on an age claim must be filed, if at all, within 90 days after the receipt of such letter from the EEOC.
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.
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 in the original charge, you may be prevented from bringing them up in a later lawsuit.


It is a rare case these days where you have direct evidence of discrimination of any kind. How do you prove an age discrimination case where you do not have direct evidence of age discrimination? Fortunately, the United States Supreme Court has given us guidance in such situations. In cases brought under the ADEA, an employee need not prove the employer’s discriminatory intent with direct evidence but may rely on indirect proof. The employee must prove that age was the “but for” factor in the adverse employment decision. In other words, the adverse employment decision would not have occurred but for the employee’s age. It is only after that point has been reached that the judge or jury can determine if the employee is entitled to recovery from the employer. Age discrimination may occur without a specific deliberate intent of the employer, if the employee was a victim of a company policy that caused a disparate impact to older workers.


Under the ADEA, an employee who has been a victim of age discrimination, resulting in an adverse employment action, may recover back wages and benefits, reinstatement to the former position, reasonable 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, in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), 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, which 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 requirements for filing 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. 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: 303-825-5529/(303) TALK-LAW
Web Site:
The information contained in this article is not intended to provide legal advice as to any particular situation, but rather is a general outline of age discrimination law. For specific advice on your fact situation please consult an experienced attorney.

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