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An employee has the initial burden of establishing a prima facie
case of discrimination by a preponderance of evidence, Burdine,
supra, 450 U.S. at 254, 101 S.Ct. at 1093, which, once
established, raises a presumption that the employee was
discharged by the employer on discriminatory grounds.
In order to
establish a prima facie case of age discrimination under
McDonnell Douglas and Burdine, the employee must demonstrate
that (1) the employee is a member of the protected age group;
(2) he is qualified for the position he held; (3) the employee
was discharged, demoted or otherwise adversely affected; and (4)
a person outside of the protected class replaced the employee.
In St. Mary's
Honor Center v. Hicks, the United States Supreme Court held that
the burden of proving discrimination remains with the Plaintiff
throughout the trial.
In order to
prevail at trial, it is not necessary for the employee to prove
that age was the sole or exclusive reason for the employer's
decision; it is only necessary for the employee to prove that
age made a difference.
In situations
involving a reduction-in-force where the employee's job is
eliminated, an employer seldom seeks a replacement for the
discharged employee. Accordingly, the fourth prong of the prima
facie case is altered to require that the employee "produce
evidence, circumstantial or direct, from which the factfinder
might reasonably conclude that the employer intended to
discriminate in reaching the decision at issue."
Individuals
may seek unpaid wages, liquidated damages, loss of all job
benefits and attorney's fees as relief. A claim under the ADEA
may be filed in either state or federal court and the employee
has a right to a trial by jury.
If a
right-to-sue letter has been issued by the EEOC, litigation must
be filed within 90 days of receipt of that letter; otherwise,
the ADEA case may be time-barred and, therefore, lost forever.
II.
FLORIDA LAW
Section
760.10 of the Florida Statutes provides that it is unlawful for
an employer to " . . . discharge or fail or refuse to hire any
individual, or otherwise to discriminate against any individual
with respect to compensation, terms, conditions, or privileges
of employment, because of such individual's . . . age."
The Florida
Legislature enacted the Florida Civil Rights Act of 1992 which
took effect on October 1, 1992. This new law provides for a
trial by jury and permits a court to award compensatory damages,
i.e., pain and suffering, mental anguish, etc. and punitive
damages not to exceed $100,000.00. In order to take advantage of
the new law, the party must initially file a charge of
discrimination with the Florida Commission on Human Relations (FCHR)
within 365 days of the last act of age discrimination. After
conducting its investigation, if the FCHR determines that there
is reasonable cause to believe that discrimination exists, the
employee may bring a civil action for damages against the
wrongdoer and/or employer.
A claim under
the Age Discrimination in Employment Act, as amended, may be
combined in the same lawsuit with an action under the Florida
Civil Rights Act of 1992
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Orlando,
Florida Age Discrimination Lawyer / Attorney