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Beer and Age Bias

by Dennis Doverspike on March 4, 2010

in Generational and Aging Issues,Legal

One of my graduate students sent me this news item. It deals with an 85 year old woman who filed an age discrimination lawsuit when she was replaced by a 75 year old.

{ 5 comments… read them below or add one }

Bryan Baldwin March 4, 2010 at 7:19 pm

Interesting. It was my understanding that employers can be liable in these situations; would be interesting to see the decision.

Mark Hammer March 5, 2010 at 4:23 pm

It’s all relative, eh?

Some years ago, we had a delegation come from the Chinese federal government, and were addressed by a very senior official, and the equivalent of the head of OPMn in the U.S.. When it came time for questions, the guy who headed up a diversity and equity directorate here stood up and asked about diversity issues in the Chinese civil service. The Chinese official beamed and, through a translator, reflected with pride on how diverse his workforce was. He gestured around the room to his delegation as an illustration of this, and informed us about how many different places they came from: Manchuria, Mongolia, Tibet, etc. Of course the rest of us gringos in the room were not nearly as fine-tuned to the subtle differences. He may as well have been pointing to Harvey the invisible rabbit for all the “diversity” we could see through our eyes. These were not exactly *visible* minorities; at least to non-Chinese eyes.

So yeah, maybe an octogenarian CAN be discriminated against in favour of a septuagenarian. Not the sort of thing that immediately comes to mind as age discrimination, but why not? We shouldn’t let our inability see differences prevent us from accepting differences perceived by others.

rayy March 10, 2010 at 9:18 am

I don’t know how it is in New York, but I think that age discrimination would have to be proved by the plaintiff in order for a suit to be successful. It’s not enough to say that they hired someone younger–there either has to be a pattern, or some proof, like an email that says, for example, we are going to get rid of everyone over 81.

Mark Hammer March 10, 2010 at 10:46 am

Rayy makes a good point.

The same age difference could be observed between an employee who is 56 and 46. That the displaced employee is older than the one who replaced them implies nothing by itself. The age difference in the outcome must be reflected in an intention to *achieve* the age difference in order for there to be any “discrimination”.

Dennis Doverspike March 28, 2010 at 9:59 am

Post about beer and you get comments. On a more serious note, and without giving any legal advice, the same disparate treatment prima facie cases apply to age as to civil rights legistlation. That is, you have to prove your prima facie case but not necessarily a “smoking gun,” an email, or what is called a “pattern and practice.” So simply being replaced by a younger employee could shift the burden of proof. After this it gets much more complicated in terms of how the defendant responds and the plaintiff counters, but it is somewhat easier to offer reasons other than discrimination in an age case than it is a race or sex case.

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