The Law Office Of

Neal Jacobs

8118 Corporate Way, Suite 110, Mason Ohio 45040


Age Discrimination - Are You Over 40?

age discrimination mason oh

Employees over 40 are protected from discrimination in the workplace under the Age Discrimination in Employment Act (“ADEA”).  The ADEA applies to employers with 20 or more employees. 

An employee is subjected to age discrimination if he or she: (1) was over 40 at the time of that he or she was subjected to an adverse employment action; (2) was qualified for his or her position; and (3) was replaced by someone under 40 (or treated differently than similarly situated employees).  The employer will argue that the discharge was based on a nondiscriminatory reason which can be rebutted by showing that the reason offered was a pretext or excuse to discriminate.  

In 1990 Congress passed the Older Workers Benefit Protection Act ("OWBPA") which further provided safeguards for older workers. One important protection is that an employee who is asked to waive a claim for Age Discrimination must be advised of his or her right to see an attorney. Retaining a lawyer may result in enhanced benefits including additional money, extended medical benefits, outplacement services and an employer's agreement not to contest Unemployment Benefits.  

To file an ADEA lawsuit, the employee must first file a charge with the Equal Employment Opportunity Commission (the “EEOC”). The employee may not file a lawsuit in Federal Court until the EEOC has conducted an investigation.  The EEOC, in most cases, issues a "Notice of Right to Sue" which requires that the employee file his or her complaint within 90 days.  A successful plaintiff in an ADEA lawsuit may be entitled to back pay, attorneys’ fees, injunctive relief, front pay and liquidated damages for willful violations.  This is a powerful tool for employees over 40.  If you think you have been terminated, or otherwise discriminated against as a result of your age you should contact The Law Office of Neal D. Jacobs. 

Experience Matters: Call Neal at (513) 229-0302
to schedule an initial consultation.

Proving Pretext

Whether an age claim or other employment case, the employee is often able to establish the preliminary elements of an illegal discriminatory action.  

terminated discrimination When this occurs the employer will often assert that the discharge was the result of a “good faith” business judgment.  In this event, the employee must show that the employer’s stated reason is a “pretextual”.  To establish pretext the employee must demonstrate that reasons given: (i) had no basis in fact, (ii) did not actually motivate the decision, or (iii) was not sufficient to warrant the action taken.

Courts have adopted an “honest belief” rule with regard to an employer’s expressed reason for discharging an employee. If an employer states a non-discriminatory, “honest believe” for discharging an employee, the employee cannot establish that the reason was pretext--simply because it is ultimately shown to be incorrect.  However, the employer’s “honest belief” must be based on facts known to the employer before the termination. Thus, courts have observed that an employer’s business judgment is not an absolute “defense to a claim of discrimination. If an employer’s decision is unreasonable then the “honest belief” rule does not apply.

Neal D. Jacobs has substantial experience assisting employees who are the victims of discrimination in the work place.  He understand the “roadblocks” that employers set up to avoid liability, and has had success in discerning when an employer's stated reason for discharging an employee is pretextual. 


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