Age discrimination

Why you probably can't win an age discrimination suit

May 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." More

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