As the population ages, and the economy continues to languish, more and
more older Americans are putting off retirement and continuing to remain
in the workplace. While many of these individuals offer long records of
experience and maturity, companies often overlook hiring or promoting
older employees in favor of their younger counterparts. As a result, age
discrimination has become one of the fastest growing types of employment
recent case, a 68-year-old attorney who was denied a job at a software firm filed
a claim under the
Age Discrimination in Employment Act (ADEA) asserting that he was “clearly better qualified” than the
“substantially younger” applicant.
Similar to other
anti-discrimination laws, the ADEA prohibits adverse employment actions against you on the basis
of age – including decisions regarding hiring and firing –
and protects you from harassment based on your age.
Moss v. BMC Software, Inc., a company hired a substantially younger candidate explaining that although
the older candidate – Moss – had more extensive legal experience,
the successful candidate had greater familiarity and expertise with specific
transactions that formed the majority of the job. Moss asserted that the
company’s reasons for hiring the younger candidate were mere pretense
and that and his age was a “motivating factor” in the company’s
decision not to hire him. The U.S. Court of Appeals for the Fifth Circuit
rejected these arguments and granted the company’s motion for summary
judgment, noting that the “motivating factor” standard is
not applicable to ADEA cases. Unlike Title VII discrimination, under the
ADEA plaintiffs must prove age was a “but for” cause of an
adverse employment action.
In granting the summary judgment motion, the court stated that the employee
failed to show direct discrimination and would not “second-guess”
the company’s business judgment about which job qualifications were
Although age may be a factor considered in an employer’s decision
-making process, it cannot be the only one.
Your choice to remain in the workforce as an older American should not
be cause for discrimination and harassment. If you believe you have been
subject to an adverse employment action as the result of your age, you
may have a claim under the ADEA. For more information, please contact
The Buckley Law Firm, LLC, a Georgia law firm dedicated to employee’s rights.