Age Discrimination Claims in New York Where You, the Person Who Replaced You, and the Decision-Maker Were All Over 40

There are many misconceptions people may have about age discrimination. People may misunderstand who can perpetrate age discrimination, what does (or does not) constitute illegal age discrimination, how often it occurs, and more. Don’t let misconceptions (or deception) about this area of the law keep you from seeking justice if you’ve been improperly fired, demoted, or otherwise treated adversely because of your age. An experienced New York age discrimination lawyer can help you assess your case and determine the best path for you.

One of those misconceptions about age discrimination is the frequency with which it occurs. (The AARP Foundation found that nearly 4 out of every 5 (78%) “of workers 55+ say they have seen or experienced age bias first-hand” at work.)

Another misconception is that, if you were replaced by a younger worker but you, the person who replaced you, and the person who made the employment decision were all over 40, then that scenario cannot possibly constitute a violation of discrimination law. As a recent age discrimination case from New York County reminds us, the latter also is untrue.

The plaintiff, G.J., was a man in his 50s who worked as a business analyst with a Manhattan hedge fund management firm until he was fired.

In 2016, the employer named O.O. as its Chief Technology Officer. According to the analyst’s complaint, O.O. was a man with limited concern for common standards of professional decorum or even laws against discrimination. The CTO allegedly made negative comments about employees’ ethnicity, national origin, gender, and disabilities. The CTO “wanted to fire the Indian employees and replace them with Russian employees,” according to the analyst. Allegedly, the CTO’s contempt for Indian workers extended to calling two Indian employees “retards” and asking a third if he “was going to a jihadist training camp.”

Women were also not safe from the CTO’s comments, according to the lawsuit. The CTO allegedly expressed an interest in placing “stripper poles” in the workplace and hiring “prostitutes.” The CTO’s team allegedly engaged in similar misconduct. One of O.O.’s subordinates referred to one of G.J.’s female subordinates as a “silly menstrual fish” in an email, according to the complaint.

None of those were things the analyst could use as the basis of a discrimination claim, as he was not Indian, female, Muslim, or a person with developmental disabilities.

Fortunately for the analyst’s case, those weren’t the only things the CTO allegedly said. He also commented about desiring to “get rid” of the company’s older employees and replace them with young, “more energetic” workers, with the ageism eventually escalating to a point that, following a July 2018 company party, a report was submitted to the global head of human resources, according to the lawsuit. Instead of addressing the CTO’s ageist misconduct, the employer allegedly fired the analyst in retaliation for reporting the discrimination.

Closeness in Age Does Not Necessarily Equal No Case

Despite the fact that the analyst was in his 50s, the CTO was in his 50s, and the woman who replaced the analyst was in her 40s, the analyst was still entitled to proceed with his case. The trial court noted that, in the past, New York appellate courts had declared that, just because “several of the persons involved… were close to [the plaintiff] in age, and thereby in the same protected class,” that fact alone did not negate a possible violation of the New York City Human Rights Law’s prohibition against age discrimination.

The court also explained that the CTO’s ageist comments were potentially actionable even if they weren’t made directly to the analyst. Those facts, if the employer succeeded in proving them, would make for a “potential rebuttal” argument, but would not invalidate the analyst’s NYCHRL claim.

The analyst’s allegations about ageism were also enough to support a hostile work environment claim. The analyst’s assertions presented a CTO who frequently discussed his desire to “get rid of” older employees in favor of younger workers, and that the analyst was one of those older workers the CTO wanted to replace, with the CTO allegedly referring to the analyst as “old” on multiple occasions. That the alleged perpetrator was also older did not immunize the employer from potential liability.

Whether the age discrimination you endured was overt (like what this analyst alleged) or was something far more subtle, it’s possible it violated laws against discrimination. When that happens, you deserve a knowledgeable advocate to go to bat for you. The skilled New York age discrimination attorneys at Phillips & Associates have successfully represented workers hurt by age discrimination across Brooklyn, Staten Island, Manhattan, Queens, the Bronx, Suffolk County, and Nassau County. To find out more about how we can help you, contact us online or at (833) 529-3476 to set up a free and confidential consultation today.

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