Age Discrimination Is Tough To Prove – Unless You Tout an “Age Range of 45-52”

By Eric B. Meyer

It’s difficult to prove age discrimination under the Age Discrimination in Employment Act.

How difficult is it? I’m so glad you asked.

Other federal statutes like Title VII and the Americans with Disabilities Act require a plaintiff to show that a protected-class characteristic like race, religion, or disability motivated (i.e., played any role) an employment decision.

With age discrimination, the bar is raised. That is, the individual alleging age discrimination has to establish that age was the “but for” factor. In other words, an individual would have to show that he wasn’t hired because of his age.

Looking for an age range of 45-52

That burden notwithstanding, I don’t like this employer’s chances based on what I’m reading in this press release about a new ADEA lawsuit brought by the EEOC:

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Seymour Midwest, a Warsaw, Indiana, hand tool manufacturing company, violated federal law when it rejected a 58-year-old executive upon learning that he was older than the company’s ideal age range of 45-52, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to EEOC’s suit, Seymour Midwest selected Steve Maril, from a pool of applicants for its senior vice president of sales position, to participate in an initial, email-based interview. In addition to questions about Maril’s experience and willingness to relocate, the company asked whether Maril was within its ideal age range of 45-52. When Seymour Midwest learned that Maril was older than its ideal age range, the company refused to hire him.’

So, not only was this age-related question allegedly asked in a job interview, it’s in an email!

A sufficiently-younger comparator

Now, you may be thinking to yourself, “Self? They’re looking for someone aged 45-52. Over 40 is a protected class under the ADEA. So, what’s wrong with that?”

To which I say, “Check yourself, before you wreck yourself. A plaintiff alleging age discrimination doesn’t need to compare himself/herself to someone who is under 40. Rather, passing on a 58-year-old candidate for someone in 45-52 year old range — because of age — is age discrimination because the comparators are sufficiently younger.”

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (, which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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