Bill, a 55 year-old construction worker, is laid off. He thinks it is because his employer believes he is too old. Does he have any rights?... Tom Smith owns a small factory. He has an older worker, Mary, who has been doing a poor job. He wants to fire her, but is concerned that it may cause a lawsuit.What are his rights?

Federal law prohibits employers from discriminating against older workers. The law protects workers age 40 to 70, with some exceptions. It applies to businesses with 20 or more employees. It covers both the hiring and firing of workers. There are no specific Arkansas laws relating to age discrimination.

The key question is "What is the real reason the person was fired (or not hired)". An employer's action must be based on more than a belief that "he can't do the work because he is too old". The employer should have proof that the person could not do the job properly.

Suppose a factory fires a 60 year old worker because he "can't do the work". A good case for the worker might include the fact that:

• supervisors made statements that he is too old

• he was the only worker fired

• younger workers doing similar work were not fired

• he was replaced by a younger worker

• he had a good work record

• he was given no warning about poor work performance

A good case for the employer might include the fact that:

• the employer had records showing poor work, absenteeism, etc.

• the job was no longer needed at the company

The worker must prove that age was a significant factor in the employer's decision to fire or not to hire. The worker does not have to show that age was the only reason. Suppose an employer fires an older worker who has had a spotty work record for several years. Since the employee was not fired earlier for his poor work, the employer may now have trouble proving that age was not an important reason for the action.

Suppose an employer fires a 60 year-old worker, and replaces her with someone age 45. Is this discrimination? Both persons would be considered older workers. The Supreme Court has held that such activity can be discrimination.

A worker claiming discrimination must file a claim within 180 days with the Equal Employment Opportunity Commission (Little Rock phone numbers are 1-866-408- 8075 and 501-324-5060). He must then wait at least 60 days to see if the EEOC will help him. If it does not, the worker then has the right to file a lawsuit in court. If the worker wins, he can be given various types of damages.These include back pay, reinstatement, front pay, and attorney's fees.

This information is presented by the Law Offices of Jim Carfagno, Jr., P.A. 2000 W. Main, Russellville, Arkansas, telephone 479-968-4747 or 866-842-8341 (toll-free within Arkansas). For more information about our firm, click the home page link below. Thank you for visiting our web site!

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