Written by attorney Maryam Soleimani Karson

Has Your Employer Fired You Because You Are Too Old? Read This Before You Sue In California

Casey Anthony’s not guilty verdict probably seemed unjustified for many of us. After all, based on the existence of the strong circumstantial evidence against her, she very likely was responsible for the death of her toddler.

That verdict is a sobering reminder that no matter how emotionally traumatic the facts of a case may be, when a criminal case is submitted to a jury for a decision, the members of the jury must put aside their emotions and their particular codes of morality and instead decide whether legally the person prosecuting the action has met the requisite burden of proof.

A burden of proof must be met in a civil case by the party filing a complaint as well. For instance, if you have been fired from your job and believe you were unlawfully fired because of being an older worker, you may be able to file an age discrimination claim against your former employer under federal or state law.

To make a successful age discrimination claim under the California Fair Employment and Housing Act (“FEHA" for short), you can’t just rely on your gut feeling. You must meet your legal burden of proof. In other words, you must be able to prove to the judge, jury, or arbitrator, either by direct or circumstantial evidence, that you were fired because of your age.

Direct evidence is credible evidence that without inference or presumption proves the existence of an employer’s deliberate discrimination based on age. For instance, if an employer tells a sixty-five year old employee that he is being fired and replaced by a forty year old because he is too old and depressing to look at every day, direct evidence of intentional discrimination most likely exists. But obviously direct evidence is hard to come by. Usually, employees must and do rely on circumstantial evidence to prove that based on the specific facts of their case, it isrational to infer they were discriminated against because of their age.

So in the usual case, if you have been wrongfully fired, under FEHA, you must show that (1) you were forty years old or older (2) at the time you were fired and (3) had been performing your job duties satisfactorily. (4) In most cases, you must also show that you were replaced by someone who was substantially younger than you some courts require the age gap to beat least 10 years. Otherwise, they presume the age gap is insignificant and you have to prove that it was not. Finally, your evidence must show that your former employer intentionally discriminated against you and any reason provided for firing you is an excuse and not an innocent or legitimate reason that may or may not be valid. Note that if you fail to prove any one of these factors, your case is probably lost.

So what should you do if you feel you are being intentionally discriminated against and are about to be fired?

Because FEHA discrimination cases must usually be proven by circumstantial evidence, you must document everything that rationally supports your claim. For instance,do forward any emails that support your claim to your personal email. Do make a list of the names, addresses, and telephone numbers of any other person you know who was older than forty and was recently let go for vague reasons. Do make sure you have the contact information of any coworker who has witnessed anything related to your claim. Because once you are fired, you won’t have access to your work computer and the emails that possibly support your claim. And if you have not yet been fired but are talking to an attorney, please remember not to email your lawyer from your work email at any time if your company has a policy of monitoring its employee emails. Otherwise you may lose your claim that the emails exchanged between you and your attorney are privileged and confidential. This could mean that your employer would have a right to formally request and obtain a copy of those emails after you file your complaint.

Please also remember not to sign any agreement with your employer in exchange for any sum of money until you have talked to a lawyer. By signing, you often give away your right to sue your employer. If you are offered an agreement, talk to a lawyer promptly, because you may have a limited time to accept the agreement and under the circumstances of your case it might possibly be a better option for you to accept the agreement rather than sue your employer.

Also note that before filing a civil complaint for any claim under FEHA, youmust, within a limited period of time, file an administrative complaint with the California Department of Fair Employment and Housing and adequately state your FEHA claims in the complaint. If you are late in filing this complaint, or if your complaint is inadequate and there is no more time to correct the inadequacies, except in very rare circumstances, your civil case will in all likelihood be dismissed.

If you intend to file a discrimination lawsuit against your former employer under FEHA, it is a good idea to first consult with an experienced employment attorney to better evaluate the strengths and weaknesses of your case and your employer’s defenses, discuss what may happen if you file and possibly lose your case, and find out if you could possibly be counter sued by your employer under the facts specific to your case. Remember that it is important to act quickly. No matter how emotionally distraught your experience has been, don’t wait until you feel better. Talk to an attorney as soon as possible, so that if it is in your best interest to file a lawsuit, time does not lapse and possibly permanently bar your ability to pursue your claims in a court of law or before an arbitrator.

Additional resources provided by the author

California Department of Fair Employment and Housing: United States Equal Employment Opportunity Commission:

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