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When to sue and when to just let go?
Old 01-23-2021, 03:16 PM   #1
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When to sue and when to just let go?

Hi all,

I'd appreciate advice from those who are in their 50s with decent assets -- and who believe they have been or will be ousted at work because of age or other discriminatory factors. Do you fight/sue or just let it go and move on?

My employer is adding positions, but with job postings that are specifically geared toward persons in their 20s and 30s who are not my demographic. So if I'm fired, it will not be for economic reasons.

I am excellent at what I do. But I've been told straight out that my retention has nothing to do with either my past performance or qualifications. I have not had a single performance review in those four years. Performance feedback is all anecdotal (attaboy emails, etc.) and all excellent. As far as I know, my personnel file is empty except for the initial hiring documents (at-will employment).

I've been at the employer (a nonprofit) for nearly four years, after leaving another secure position (for-profit) with more money but more stress to match. I liked this job because, well, it's one where I can "make a difference." And I have made a difference, in the lives of the people I serve. It's the management that is the problem.

But now, I'm being told my continued retention is based on me applying for and being hired for jobs with postings that describe ideal candidates as persons who are exactly opposite from me. I'm being treated as an external candidate. I've played their game twice so far. The first time, they gave me an interview and I was not hired. The second time, I was was not even selected for an interview.

Now there is another round of hiring and they're sending signals I'm out of a job if not hired this time around.

There are likely grounds for a lawsuit, but ... is it worth it? There will be no "severance"; this is a nonprofit that doesn't do that sort of thing. And in the end ... what does a successful lawsuit really get me?

I'm 53 and my wife is 55. No kids. House is worth $400K and paid off. We have a combined $1.7M in 401(k), IRA, and brokerage, so we are pretty fortunate savings-wise but probably not quite to FIRE territory. I'm definitely interested in thoughts on that though -- monthly expenses probably around 4K, which would allow for some travel, etc.

My wife has what appears to be a secure job ($70K a year) through which I could get health insurance for now. Health insurance is my biggest concern. And I don't want her to have to work while I don't work -- doesn't seem fair.

I likely could get another job, but I don't want to go back to the stressful prior position or one like it. I used to half-joke that I want to work at Costco. In all seriousness, I'd love to do something where I'm on my feet, but COVID is not the time to make such a switch, particularly with health-insurance concerns. (I can do my current job 100% remotely.)

So ... do I fight a firing or just move on? I'd really appreciate thoughts from those who have been in similar situations.

Thanks.
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Old 01-23-2021, 03:55 PM   #2
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The department of labor in your state might be a good place to start, ask a few questions about what your options will be if they let you go. They might fight for you for free.
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Old 01-23-2021, 05:10 PM   #3
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The time to act may be now. If they are already imposing age discriminatory policies onto you, you may wish to hire a lawyer and challenge them immediately. If there is an active case, the chances of them proceeding to release you while that is happening is next to zero, as it would open the door to charges of retaliation. I walked the path of a 50+ employee at Megacorp, and it wasn't pretty. Fortunately, I held on to FIRE.
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Old 01-23-2021, 05:26 PM   #4
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Hi all,

It's the management that is the problem.
You haven't been very descriptive as to your job responsibilities. If you're in a position of representing your organization to the outside world, for example, and you're not 100% bought in on your management's vision of how the organization should be represented to the outside world (sales, fund raising, etc.), then your disconnect with management could be a real problem. And a problem that says you're not doing your job as expected.

If your job is more task orientated and you're getting things nicely done in a timely manner, then if you're replaced by a younger person, and especially at lower pay, you might have a case.

And a question...... You say that the job postings are geared towards persons in their 20's and 30's. How so? Do these postings actually give some chronologal clues as to the preferred age of the applicant such as "recent college graduate" or "1 to 5 years of experience" for example?
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Old 01-23-2021, 05:34 PM   #5
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Thoughts:

One of my Management 101 maxims is this: "An organization that produces no measurable output inevitably devolves to being highly political." I can back this up with logic and examples, but if it is true then your problem may be not being "liked" by the right people. Probably that is not fixable but it is worth considering.

Lawyers like money. If there were a class action suit somewhere in this situation you might be able to find lawyers who would accept contingent fees. If there is not, you are looking at funding an expensive project against an adversary that has more money than you do.

Regardless of what you decide at this point, start documenting your case. Write contemporaneous notes, date, time, person, what was said for any conversations that are even vaguely relevant to your situation. ("Sending out signals ..." ?!!? document the signals!) Ditto for situations like who got hired when you did not. Anything happening with other people in your age category. Keep a copy of any job posting that states or implies an age range; they are illegal. In our state, recording a conversation is legal if one of the parties knows about the recording, so it is legal to record telecons and meetings on your own. It costs nothing to build a file and you can decide later whether to use it or not.

Given the circumstances do you really want to work there? Win the battle but lose the war? While you think that over, get started on a job search. You'll have a head start if you jump or get pushed and it costs little or nothing.

Just thoughts. No answers. Sorry.
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Old 01-23-2021, 05:54 PM   #6
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I'd talk with a lawyer as soon as possible. Follow their advice but I'm not sure I would keep it a secret from your employer... if the employer knows that you are sensitive to age discrimination then I think they'll be treating you with kid gloves.
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Old 01-23-2021, 09:10 PM   #7
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I was in management with big pharma for 20 years. Saw it all and had time to prepare for when it happened to me.
Bottom line, every company keeps “rotation” lists. Things like, income, age, tenure are used to force rank.
When I was told I was “resigning” with a package I called a lawyer. Lawyer wrote a few demand letters to no avail. It was explained to me: “they are an at will employer and the they call shots on who they employ.
They had better lawyers and more money so I just let it go.
The irony is the same thing happened to my dad and best friends dad...all different organizations.
Ultimately, I had saved hard and had plenty to retire on at at the same income level as when I was working.
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Old 01-23-2021, 09:11 PM   #8
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I think I would have walked away the first time they pulled that crap. If you feel you have it in you go ahead and fight it. It will add stress to your life if you do. Be ready for that.
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Old 01-23-2021, 09:21 PM   #9
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Seems like something is missing to me. You have to apply for a new position? Why? Is your current position going away?
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Old 01-23-2021, 09:41 PM   #10
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Seems like something is missing to me. You have to apply for a new position? Why? Is your current position going away?
If it is anything like what I went through, my Megacorp eliminated old jobs and listed new jobs with the tactic this would help them layoff/fire employees who were unable to find another position. In prior years, if you had skills, they would *find* you other work. This practice started disappearing when a good number of the employees were in their late 40s and beyond.

At that point, it didn't matter if you were a star employee or had saved the Megacorp's rear numerous times. They wanted you out, so unless you could find something else in some other remote section of the company, you were a goner.

I debated fighting the pending layoff I ended up with through legal avenues, but it is tough to prove. Megacorps can punish you more than if you just walk away. There are always exceptions if you happen to win a legal battle. DW told me not to fight it, that we would survive without me even working.
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Old 01-23-2021, 09:42 PM   #11
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It's clear your current employer doesn't want you anymore because you don't offer anything they can't get from someone else, who just so happens to be young and cheaper. The smart and least stressful decision is to move on to a different organization.
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Old 01-23-2021, 10:14 PM   #12
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Thanks a ton for the responses. These are excellent; I appreciate those who took the time.

To answer some questions:

The job responsibilities are task-oriented and essentially internal; no fund-raising or other outwardly facing responsibilities. Sorry I can't be more descriptive. Need to be somewhat careful.

Regarding the preferred age, the term "entry-level" has been used in two postings so far. The postings also specifically welcome applications from "underrepresented communities," of which I am not one.

I think it's 100% true I'm not "liked by the right people"; that is spot-on. But I AM liked by the constituents whom I serve (and can prove it in writing) ... and that is what matters and why I went to this organization.

Concerns about winning the battle but losing the war also are spot-on. So I win. So what? The "right people" will dislike me even more. But ... losing health insurance during a pandemic is no small thing. And I highly enjoy the work I do because it is meaningful to those whom I serve. That is why I don't just leave.

I have written a terse letter to the top manager making it pretty clear I'm watching them closely for potential discrimination. 10 days ago, I requested a follow-up meeting and that request has gone unanswered.

Interesting take from Gallaher; thanks. I've saved hard too ... but wanted to make it to about 58 on current salary (110K). At that point, as long as the market does not crash, I think I'd be FIRE. If I was five years older, I'd tell them to buzz off in no uncertain terms. Just not quite to that point age-wise yet.

Re: "I think I would have walked away the first time they pulled that crap." Get this: The third week of March, when the pandemic was just starting to rage, is when I got the news about not being "hired" for what is essentially my job. Terrible. After that, I stayed to protect my health insurance because everything about the pandemic was so uncertain. Last thing I needed was no job and a long hospital stay.

Yeah, the whole bit about reapplying for my job is ridiculous. They are "reclassifying" positions, essentially to increase diversity. Same job, different title. And I can prove it if necessary.

As for my DW's position on all this ... she has seen me live through it for the past couple years and wants me to fight it more than I do.

G8tr ... you make a very good point. At 53, with a decent amount of $$ in the bank and a house that's paid for, I just don't need the stress. The health insurance continues to be the sticking point for me. But maybe I'm too fixated on that. Like I said above, if I was a few years older and 500K richer, I'd tell them to buzz off.

My current thought is to let them fire me and not quit. The firing would come at the end of June. Legally, I know I need to be terminated and not quit to pursue anything. Getting fired at least lets me keep my options open. I fear we'll still be deep into this pandemic in June and there likely will be some sweet unemployment benefits to enjoy. Why not use them -- and drive up the employer's unemployment insurance premiums.
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Old 01-23-2021, 10:42 PM   #13
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I think I would seek other employment. I do agree that you should talk to an attorney ASAP and press your case ( as you have begun to do) before being forced out.

I doubt you have an age discrimination claim. But they may think you do if it is a small organization, and that could buy you some time in your job search. Are there others being forced out that are over 40? The demographic makeup of the folks they are forcing out would be important in determining if you have a cause for action.

Best of luck. Let us know what you decide.
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Old 01-24-2021, 01:03 AM   #14
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OP - You need to preserve evidence.
screenshots of emails , etc.
Also need to be very very careful as depending on email system, they might be able to tell you are emailing copies to yourself, or copying the email files to thumbdrive.

Without written proof, it's your word against theirs and you lose, but the act of preserving evidence itself can be grounds for dismissal as you are not authorized to do that.
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Old 01-24-2021, 02:39 AM   #15
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I think I would seek other employment. I do agree that you should talk to an attorney ASAP and press your case ( as you have begun to do) before being forced out.

I doubt you have an age discrimination claim. But they may think you do if it is a small organization, and that could buy you some time in your job search. Are there others being forced out that are over 40? The demographic makeup of the folks they are forcing out would be important in determining if you have a cause for action.

Best of luck. Let us know what you decide.
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Old 01-24-2021, 03:36 AM   #16
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If the employer wants you gone you will be gone.

The only question after that is related to the jurisdiction where you live. Dismissal without cause can cost the employer money depending on your jurisdiction, your age, your position, etc. Where I live it can be anywhere from 1 month to 24 months based on all renumeration-based on the value of salary and benefits.

Speak to an employment lawyer in your area to determine what you should expect as a settlement.

In the interim, if you want to continue working brush up your resume, mine your contacts for employment opportunities and move forward. Get some interviews under your belt-telephone or otherwise. It is good practice.

Forget the age discrimination business unless there is a pattern with many employees impacted. The odds are very much stacked against you.
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Old 01-24-2021, 05:15 AM   #17
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OP - You need to preserve evidence.
screenshots of emails , etc.
Also need to be very very careful as depending on email system, they might be able to tell you are emailing copies to yourself, or copying the email files to thumbdrive.

Without written proof, it's your word against theirs and you lose, but the act of preserving evidence itself can be grounds for dismissal as you are not authorized to do that.
+2. If you get a lawyer, only do in on a contingency basis. Don't be stuck with legal bills.
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Old 01-24-2021, 06:14 AM   #18
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I feel your pain, as I’ve been there. Lost a job mostly due to gender discrimination, 2004. It is an extremely stressful situation, if you need the money.

1. Recognize you are under major stress. Your top priority is to take care of yourself.
2. Be on your absolute best behavior at work.
3. Look for a new job. Update your resume. Start looking now. It’s easier to find a job while you still have one. And you may find that this was the best thing that ever happened to you, career-wise.
4. If you really want and need THIS job, consult a labor lawyer. You should get a free consultation regardless of the fee situation. You may have a case, but age discrimination is hard to prove.
5. Make an appointment to review your employee file in HR. Take notes on its contents. In the days of smart phones with cameras, you may want to video yourself checking the contents, so if there are nefarious contents, such as bogus performance reviews, you’ll have evidence. Probably you’ll find nothing but it will ease your mind.
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Old 01-24-2021, 06:15 AM   #19
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Health insurance isn’t as problematic as you think, if your investment income is under the ACA cliff. And you would be eligible for COBRA as well.
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Old 01-24-2021, 06:49 AM   #20
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Time to walk away. Make them let you go, collect unemployment insurance and get on with you life. Even if you win legally, ask yourself if it really would make a difference in your life. For example, a typical dream is a severance package of one year’s salary and benefits. I think the odds you’d get that even with the help of a lawyer are slim. But, if you did, would it be life changing - I think not. Nice? Sure, but not enough to go through all the stress you’d put yourself through.

What I’d focus on is your financial situation. With $1.7M and expenses of $4K per month, you’re in great shape. FIRE starts with being Financially Independent. I think you’re there. That means the more productive and healthy thing to do is to spend your energy on figuring out your best life moving forward. That may indeed be “working at COSTCO”, but you need to free yourself up to see the possibilities in front of you.

Honestly, this is an exciting positive time for you. Play their game until it comes to a natural conclusion, which may be that you’re let go. See if there’s any severance you can negotiate. Then move on. Best wishes.
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