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What is the name of your state? Florida
My father worked for a company for 32 years. A total of 40 people were terminated in the country, about 70% were over 40, making higher salaries. He was offered an extended severance package for a lump sum. He did not sign the waiver. He has since learned that his position is being filled by someone with no more than 3 years service. My understanding of age discrimination is that he cannot be replaced by someone with less experience, if the company is downsizing. Is this true? My father went to an atty who basically told him age discrimination is a very costly and hard claim to prove, it's up to him to decide if he really wants to go through with filing a claim. At first he didn't want to pursue, but now it's the principle of the matter. He (and the others) very highly respected men in their fields who made quite a bit of money for this company.


Senior Member
The ADEA does not prohibit an employer replacing an older employee with someone younger and/or who has less experience. Nor does being replaced with someone younger or less experienced automatically make it an age discrimination.

What the ADEA does prohibit is an employer taking adverse employment action BECAUSE someone is over 40. Your father's job could be eliminated in spite of his age, just not because of it.

The attorney your father spoke to is correct that age discrimination comlaints can be very hard to prove and litigation is always costly.


I'm a Northern Girl
Your understanding of age discrimination is not quite on target. Age discrimination is when someone is targeted for layoff (or other adverse action) BECAUSE of the fact that they are over 40. Depending on all the factors involved, replacing that person with someone younger and/or with more experience can be one element used to show that age discrimination occured, but it does not prove age discrimination in and of itself. No law prevents someone who is over 40 from being replaced with someone younger UNLESS the sole reason for replacing the older person is their age.

The attorney is correct. Age discrimination is very hard to prove. If he wants to get an idea how good an overall case he has, he should contact the EEOC or the state discrimination board and file a complaint there. This would have to be done before he could file a legal complaint with the court anyway. The Federal or state agency or agencies would investigate and determine whether or not he had a case worth pursuing, and it would cost him nothing. He would then have a better idea whether or not it would be worth the money.

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