Age bias in IT: Should you sue?

Age discrimination lawsuits aren't easy to endure, but they can be won. Here's what you need to know.

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Ottinger insists that age discrimination suits are "very winnable." But statements like that trouble Laurie McCann, a senior attorney at AARP Foundation, a charitable arm of senior advocacy group AARP that's focused on helping people 50 years and older meet their basic needs.

McCann says it's essential that older workers have a clear-eyed view of the litigation process before they decide to sue. "Any large employer is likely to retain a large law firm with tons of associates who will try to 'paper' you to death," McCann warns. "They'll depose you, they'll make a motion to dismiss, they'll make a motion for summary judgment. You need to be prepared for that.

"Filing a lawsuit is expensive, in terms of the financial cost and the emotional toll," McCann explains. "And it's not just you. If you're married or have kids, everyone is going to be impacted." She emphasizes that she's not saying older workers should never sue, only that they should be sure that they've taken the following steps before they file a lawsuit.

Step 1. Take preventive measures to ensure that managers have no reason to find fault with your work, says McCann. That means making sure your skills are up to date (a particular challenge in IT, McCann acknowledges), volunteering for new projects and extra assignments, taking advantage of any training the company offers, letting your superiors know you're interested in promotions and in general working to counter any stereotypes about older workers.

Step 2. If you're still employed but suspect you're being passed over or demoted because of your age, let someone in the company know your concerns. It could be your supervisor, if you feel that he or she would be receptive to what you have to say; or it could be someone from the human resources department, which is typically responsible for seeing that the organization complies with the ADEA and other employment mandates.

Step 3. File a charge with the EEOC. This is mandatory if you think you'll eventually end up suing. You don't need a positive finding from the EEOC investigation to pursue a lawsuit -- in fact, you don't even need to wait for a decision; you can initiate a suit 60 days after filing your claim -- but the process can be beneficial, particularly if you have a good EEOC investigator. "It's free discovery," says McCann, adding that the investigation often can indicate how the company would defend itself in a court of law.

If you do file a charge with the EEOC, McCann says you should politely but firmly keep up with the investigation and communicate with the investigator assigned to your case. You might want to suggest employees or former employees for the investigator to contact, for example.

Step 4. If all else fails, file a lawsuit. Guidelines for taking legal action are available on the EEOC website.

What does it take to successfully sue? Ottinger offers the following checklist:

  • You must be over 40. That's when the ADEA kicks in.
  • You must be able to prove that age was a motivating factor in your dismissal. The older you are the higher your salary is likely to be, and that gives employers a lot of cover. "They can legally hire someone who is one-third of your price, and that's not illegal," says Ottinger.
  • You must be able to demonstrate that your performance was not at issue.

And then, you need stamina. Remember, the Google case is still making its way through the courts, eight years after plaintiff Brian Reid lost his job.

Be sure to also read Age bias in IT: The reality behind the rumors and Aging gracefully in IT.

Tam Harbert is a Washington, D.C.-based writer specializing in technology, business and public policy.
Tracy Mayor is a
Computerworld contributing editor.

Copyright © 2011 IDG Communications, Inc.

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