Age discrimination cases can be very challenging as there are quite a few elements and factual considerations to review in order to have a case under 29 U.S.C. §621 et seq. That statute is known as the Age Discrimination in Employment Act of 1967 (ADEA).  Here is a general checklist of 10 matters to consider for potential clients to be review and then be prepared to discuss with you:

 Is there an adverse employment action against you such as termination, layoff, failure to promote, unfair compensation, unfair job assignment, training discrimination, harassment, or refusal to hire? 29 U.S.C.S. § 623(a).

1. Did the adverse action occur when you were age 40 or older? 29 U.S.C. § 631(a).
2. Are you qualified for the position you are seeking to keep or for promotion? 29 U.S.C. § 623(f) and see 29 C.F.R. § 1625.6.
3. If you worked for a private employer, did it have over 20 employees at the time? 29 U.S.C. § 630(b).

Or

Did you work for an employment placement service such as temporary employment agency? Even if you are the only employee placed at the location where discrimination occurred, that may suffice. 29 U.S.C. § 630(c).

Or

Are you represented by a labor organization with at least 25 or more members? 29 U.S.C. § 630(d)(e).

5. Was there good cause (i.e. violation of a work rule) for the action taken other than your age? 29 U.S.C. § 623(f).
6. Did you file a complaint for discrimination with the EEOC within 180 days of the adverse employment action? 29 U.S.C. § 626(d).
7. Have you received a “Right to Sue” letter from the EEOC and is there time to file a lawsuit within 90 days of that? If you have not received a “Right to Sue” letter, has more than 60 days passed since you filed a complaint with the EEOC? 29 U.S.C. § 626(d), (e).
8. Is there disparate treatment? In other words, was someone treated more favorably than you because you were older? It is not adequate that age was one reason among several. Age must be the reason for discrimination. Were there age-based comments made by a supervisor? Weinert v. Lemont Police Dep't,, 855 F. Supp. 2d 793 (N.D. Ill. 2012) “[P]resident … should hire a "bright young individual" and “younger replacement” comments.

Or

Is there a disparate impact? That refers to the fact that the discrimination is not intentional but statistically it only impacts older employees (not applicants). Smith v. City of Jackson, 544 U.S. 228, 125 S. Ct. 1536 (2005).

Or

Is there harassment? Severe or pervasive and not mere unpleasantness. Burns v. AAG-McQuay, Inc., 166 F.3d 292 (4th Cir. 1999).(Asking about retirement plans and comment acting like a child – not enough).

Or

Is there retaliation? Did you participate in an ADEA proceeding that opposed discrimination or assisted others in opposing discrimination? Again, the reason for the retaliation must be directly related to the protected activity and not other matters, such as poor performance.  Hall v. Uipath, Inc., 123 F.4th 419 (5th Cir. 2024).

9. Are you an executive or policymaking employee? These individuals may be exempt from ADEA and may not be protected. 29 C.F.R. § 1625.12(d)(2), (e).
10. Are you aware of any other reasonable factors other than age that the employer has voiced for the action taken? 29 U.S.C. § 623(f).

 A major difficulty that clients must remember is that under the case Gross v. FBL Fin. Servs., 557 U.S. 167, 177, 129 S. Ct. 2343, 2351 (2009), “the plaintiff retains the burden of persuasion to establish that age was the "but-for" cause of the employer's adverse action..” Thus, while under Title VII (e.g. race or gender discrimination) one impermissible motivating factor may be sufficient, (a bad factor mingled with permitted factors), that is insufficient for an age discrimination claim. You must show proof demonstrating that "but for" being age 40 or over, the action would not have been taken.