When to sue and when to just let go?

[SAinMinn]

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.

 

[iblearning]

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.

 

[FIREchief]

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.

 

[youbet]

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?

 

[OldShooter]

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.

 

[pb4uski]

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.

 

[Gallaher]

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.
Life is short.

 

[Morgan22]

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.

 

[RunningBum]

Seems like something is missing to me. You have to apply for a new position? Why? Is your current position going away?

 

[statsman]

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.

 

[G8tr]

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.

 

[SAinMinn]

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.

 

[Montecfo]

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.

 

[Sunset]

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.

 

[Dtail]

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.

+1
Although it is a not for profit, companies can usually wear down former employees with unending legal expenses over long periods of time.

 

[brett]

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.

 

[DrRoy]

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.

 

[EastWest Gal]

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.

 

[EastWest Gal]

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.

 

[Jerry1]

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.

 

[Markola]

When do you turn 54? You can likely tap your 403b penalty free “in the year in which you turn 55.” If you’ll turn 55 in 2022, ideally you could hang on until January 1. If that’s out of your control, so be it.

I left a nonprofit as a manager 6 months ago and faced some rough handling by HR on the way out over their refusal to pay my bonus that my manager promised me. Six months later, I’m over them and am looking forward. That place had a horrific year, which I was glad to miss most of. You cannot fix these people, who are under financial pressures and staffing targets directly from the board, which are more important to them than you and your job as they are trying to keep theirs. Face facts and get your own plan together.

Thinking out 6 months for you, probably more importantly right now than wasting energy and money fighting them and being bitter is making a list of references for your next job search and compiling your achievements. And start looking for another job - today - if that’s what you want. Regardless, with a paid off house, a spouse who is working, access to her health insurance, and $1.7 million you will be fine, so keep telling you and your spouse that. If they let you go, you just need to power through to the other side, whether a job, consulting FIREing or a sabbatical to figure things out. Maybe visit a fee-only financial planner with your spouse to build confidence together. With no mortgage and $4K expenses, you might well be able to FIRE but you need clearer numbers and for your spouse to be on board.

Feel free to PM me if you like, as I am much the same profile as you age and asset wise, too, and I have seen this territory. I’ll share with you our assets and how I went ahead and FIREd at 54.

 

[SpinDoctorTX]

Once your cons outweigh the pros, it's likely time to move on. At will hire/fire policies do not protect employees, and neither HR nor the EEOC are your friend. You'll need a smoking gun & witnesses who may be people you like and could put at risk (and they may not see things as you do, no matter what they may have said in the past).

I retired 4 years ago at 56 with no regrets, other than I should have pulled the plug the second I turned 55 gaining retiree medical ins. (now it is $750/ mo). Since you have medical insurance through your wife, you're in the same position DH was in when he retired at 62.

 

[deserat]

OP,

You've gotten great advice so far. I was involved in a federal lawsuit (not over labor issues, over insurance payout) and I must say the experience was not one I wish to repeat. In the end, the settlement terms benefited the lawyers and court system more than the plaintiffs.

BLUF: figure out what your end goal is and what you are willing to settle for and realize you may pay a lot in time, money and stress to get that.

I learned the following:

1) Lawyers need to make a living and your case is one of many. They've probably seen it all before and have a good idea what the probability is that you will prevail. They also know most of the players in this arena and their specialty area, hence, why it is as important who your lawyer is as well as the merits of your case.

2) You will still be required to do a lot of the work gathering information to 'prove' your case.

3) It may be dragged out for years. Courts are scheduled based on judge and lawyer availabilities.

4) A large part of the game is demerits with regard to document filing deadlines and format specifications. Moreover, the courts and judicial system are woefully behind in many ways with regard to 'e-processes' so a lot of the paperwork is just that. It's slow.

5) You must be emotionally tough and resilient through the process. The other side can and will throw personal insults and/or lie in documents. If it comes down to a 'he said-she said' type of scenario, reputations and past behavior will be used to either bolster or destroy each sides' claims.

6) Fortunately for me, I did not make ad hominem attacks and merely stated the facts 'as I saw them from my perspective' which stood me well for the most part. It was very difficult as the implications of their accusations were severe if they were not retracted and not allowed to go on the public record.

7) Ergo, without documented unemotional proof that your employer has violated the labor laws for age discrimination, it may end up being a slog in the mud. You have already put them on notice with your letter and request to meet with the leadership. I would think carefully about your next steps.

8) I agree without incontrovertible proof, it is best to make them fire you or lay you off as that will probably be the best outcome you will have in this unfortunate situation. You are in great shape financially, so that should be a load off your mind. I would not waste one penny of what you've saved fighting this.

Good luck and please post back with your decision and what happened.

 

[OldShooter]

... 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. ...

@SAinMinn I will pick at that statement a little bit: In the context of your employment situation, the fact that your clients like you does not matter at all.

Here's why: Your replacement is hypothetical. A hypothetical employee can do anything that your managers choose to project onto him/her. So they will certainly project skills sufficient to be liked by your clients, maybe even skills that will make them better liked than you are.

... I think it's 100% true I'm not "liked by the right people"; that is spot-on....

Re internal politics, I am not surprised. The thing to remember for next time is that gently and continuously selling yourself inside the organization is critical when you are not producing something that can be measured. If you are producing something like widgets or sales orders, and you excel at this, your are golden even if you are not well-liked. (Not being well-liked is not a wise strategy of course.) But if you don't produce easily measured and important results, then it's politics all the way. It really has to be, as there is nothing else to base judgments on.

When I was a young engineer I remember a 30-something engineer named Fred. Fred was constantly visible in the hallways, nattily dressed in a dark suit, carrying a wad of paper, and walking quickly. He was pleasant and always greeted people -- the very epitome of an important and busy man. Few knew that, as an engineer, Fred was as dumb as a stone. He could have been a genius there, too, but that would be unknown to the people who saw him constantly in the hallways. His true worth didn't matter.

 

[38Chevy454]

Just adding in, I think OP SAinMinn has it figured out correctly. He is on the wrong side of the political list. He is being pushed out.


Yes it sucks being on the receiving end, and while age (and salary) discrimination is probably happening, it will be a no-win situation to go the legal route. If you win, you are just put as number 1 on the next round hit list, and upper mgmt will make your work life miserable. If you lose in a lawsuit, there will be hard feelings when you are done. Only people that win are lawyers collecting fees.


My suggestion, try to stay as long as you can, taking the time to pursue new employment while you are still employed and have benefits. It is good you can jump onto your wife's health ins if needed. Take all the unemployment you can get if it reaches that point. Sorry OP to hear you are in this position, but I think you know that staying at current job is not likely for the end that you had originally planned.