How Do I Prove I Was Laid Off Due to Age Discrimination?

 Older employees, along with the disabled and pregnant employees, are the most targeted employees in layoffs. There seems to be an assumption that the "old guys" will be retiring soon anyhow so it doesn't matter. It does. Targeting older employees is illegal. 

How do you figure out whether you were selected due to illegal age discrimination? Here are some factors to consider:

• Comments: If your boss makes comments about age, that's direct evidence of discrimination. As an example, referring to older employees as, "geezer," "old man," or "pops," may indicate age discrimination. It can be more subtle. Saying the company wants a "young image," asking questions about your energy level, asking when you intend to retire, or saying you may not be able to keep up with the new changes can all be evidence of age discrimination.
• Different treatment: If you are selected as one of the employees to be laid off but younger, less qualified employees are kept on, then that is also evidence of discrimination. Let's say the position requires a certification. You have it but the younger employee is working to get it. You're more qualified. That is evidence of age discrimination. Seniority can also be a measure of your qualifications. If you've been in the position for 20 years with all good reviews and the younger employee has only held the job for a year, that's a good indication that age discrimination is occurring.
• Different options: If you are told you have to take the severance, where other younger employees are given the option of stepping down to a lower paying position, or transferring to a different department, then that could also be age discrimination. On the issue of stepping down versus taking the severance package, if it's offered to you, that's a decision you need to weigh carefully. If your retirement benefit (assuming you work for the rare company that still has one) is measured by your last year or several years' pay, then you may want to go for the severance package if offered. On the other hand, if you aren't vested in some benefits or can't retire yet and only have a few years left, stepping down may be the best option. This might be a good time to meet with your accountant or a financial planner to discuss the best options for you.
• Disparate discipline: Since the company is looking at disciplinary history, if you are suddenly targeted for discipline for picky things that younger employees also do and aren't disciplined for, then that is another sign that you are being targeted due to your age.
• Check that list: In a layoff employers should attach a list of the job titles and ages of people who were selected for layoff, and those kept on. It might show a pattern of age discrimination.

If you think you're being targeted due to your age, talk to an employment lawyer in your state. Sometimes discrimination can give you leverage to negotiate a better severance package.