Why you probably can't win an age discrimination suitMay 18, 2012: 9:19 AM ET
A recent Supreme Court decision made proving age bias even tougher than before.
FORTUNE -- Dear Annie: When I returned to work after a short medical leave a few weeks ago, my employer told me that my management job had been eliminated. However, he offered me a sales position that comes with a major salary cut. Also, at the same time they eliminated my old job, they created two new positions, one of which is practically identical to what I was doing before. When I asked my boss about that, he told me not to bother applying for it.
It's pretty obvious they wanted to trade me in for two 30-year-olds (I'm 74, but in very good shape.), and I can't afford to retire now because I have a child who just got admitted to an Ivy League school. So what are my options here? Should I hire a lawyer and sue the company for age discrimination? Or just take the sales job (and the pay cut), be grateful I wasn't laid off, and shut up about it? — Demoted in Dixie
Dear D.D.: Whoa. Your boss told you "not to bother applying" for the job that is "practically identical" to your old position? Before you decide whether or not to involve a lawyer, here's the first thing you should do: Apply anyway.
"Make sure your resume and application have all the keywords, and highlight all the relevant experience, that the job requires," suggests Brian Jackson, an employment attorney at Fisher & Phillips (no relation to yours truly) in Chicago. "Then, if they hire someone younger than you instead, and the only difference between you and that person is age, you may have a case."
There's nothing illegal about an employer eliminating a job, or dividing it into two jobs. "However, if your employer is not even letting you compete for the new position because of your age, there may be a legal issue," Jackson says. "But until you actually apply and get turned down, you have nothing -- because the guy who told you not to bother applying will never admit that he said that, and it will be impossible to prove."
In the meantime, he adds, there is no reason to reject the sales job the company is offering: "Even if you end up suing the company, or filing a complaint with the Equal Employment Opportunity Commission, you can still be working there, and the employer can't legally retaliate against you in any way" -- by firing you, for instance. "If a corporate client tells me they fired someone who sued or complained to the EEOC, my answer to that is, 'Okay, get out your checkbook,' because I know we are going to lose that case in court, so let's settle right now."
Speaking of settling out of court, a bit of background: The number of age discrimination complaints filed with the federal EEOC has been climbing steadily for years (up 50% since 2000, and 17% since 2007), but it's hard to say whether lawsuits have increased as well. That's partly because age bias is the only kind of employment discrimination where a plaintiff can file a lawsuit without first waiting for the results of an EEOC investigation, so the number of suits may actually be far greater (or, conceivably, fewer) than the number of EEOC filings.
The number of suits is hard to track, Jackson notes, because many such actions are settled, in the plaintiffs' favor, on the courthouse steps: "If an employer thinks a jury is likely to side with the plaintiff, [the employer] is much more likely to offer a settlement" than to let the suit proceed.
That's not to say that plaintiffs hold all the cards -- far from it. When these lawsuits do get as far as a courtroom, employers usually prevail. A 2009 Supreme Court case, Gross v. FBL Financial Services, Inc., raised the bar for proving age discrimination. Instead of merely showing that age was a contributing factor in an employer's decision to fire or demote them, or to refuse to hire them in the first place, plaintiffs now have to come up with convincing evidence that age was the only factor.
"That is a lot harder," Jackson observes, "because of course employers may have several different reasons for making any given decision, not just one." If, for example, the company can persuade a jury that you lost your job because you just weren't that great at it -- whether you're 30 or 80 -- then your chances of winning may be slim to none. And in an era of constant cost cutting, almost any company can point to many money-saving moves and contend that your dismissal or demotion was a simple matter of dollars and cents.
With all that in mind, taking the sales job you've been offered and making the best of it is certainly your simplest option. But let's say you apply to get your old job back, someone younger and less qualified is hired instead, and you decide you want justice.
"At that point you could consider contacting an employment lawyer, who will send a letter to your employer that lays out all the facts," says Jackson. "It will probably say something like, 'Before we start litigating, let's discuss the situation.'" That, of course, is not so subtle code for, "My client will consider letting this whole thing drop in exchange for a check big enough to cover the pay he lost when you demoted him."
Talkback: Have you encountered age bias in a job hunt, or a job? What, if anything, did you do to counter it? Leave a comment below.