Image of What evidence is required to prove age discrimination?

What evidence is required to prove age discrimination?

Proving Age Discrimination


To establish an age discrimination claim, the plaintiff must show that:

  1. she was older than 40;
  2. she was discharged;
  3. she was qualified for the job and met the defendant’s legitimate expectations; and
  4. her position remained open or was filled by a similarly qualified individual who was substantially younger.

A plaintiff suing under the ADEA must show that “but for” age discrimination, the adverse employment action would not have occurred.  “But for” caution is not tantamount to sole factor causation.  See Burrage v. United States, 134 S. Ct. 881, 888-89 (2014) (an act is a “but-for” cause “[even if it] combines with other factors to produce the result, so long as the other factors alone would not have done so – if, so to speak, it was the straw that broke the camel’s back.”).  In Bostock v. Clayton Cty., the Supreme Court clarified the burden of providing “but for” causation:

Title VII’s “because of ” test incorporates the “‘simple’” and “traditional” standard of but-for causation. Nassar, 570 U. S., at 346, 360, 133 S. Ct. 2517, 186 L. Ed. 2d 503.  That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross, 557 U. S., at 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a but-for cause.
590 U. S. __ (2020), slip op at *6.

See age discrimination lawyer Eric Bachman’s insights in a recent ABA Journal article A flood of age discrimination lawsuits is expected from COVID-19 and the economic downturn and his recent Forbes columns:

Experienced and Effective Age Discrimination Lawyers

Our experienced age discrimination lawyers represent victims of age discrimination in actions brought under the Age Discrimination in Employment Act (ADEA) and state anti-discrimination laws.  Recently firm Principal Eric Bachman, in conjunction with co-counsel, secured a $1.3 million jury verdict in an age discrimination case.

In addition, Bachman is frequently quoted in the media offering his unique insights about discrimination laws, including in this recent interview with the AARP on Steps to Fight Against Age Discrimination, as well as being quoted in these articles: Sloppy company communication leads to age discrimination lawsuit and 7 signs you’ve been a victim of age discrimination.

If you have suffered age discrimination, contact our experienced and effective age discrimination lawyers today to learn about your rights.  To schedule a preliminary consultation, email us at or call Eric Bachman at (202) 769-1681.

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.