Legal Question in Legal Ethics in Oregon

Re: Now I'm not Qualified

Age discrimination is a violation of law, of course, but merely being within the protected age group (age 40 and above under federal law and from age 18 under state law) does not protect an employee from adverse treatment from an employer. To constitute illegal discrimination, the adverse treatment must be BECAUSE of age. This connection between the protected classification and the adverse employment action is the critical factor.

Once we demonstrate some connection, the employer is obligated to articulate a legitimate business reason for its employment decision. Once it does so, the employee must show that the purported legitimate business reason is not the real reason, but is but a pretext for illegal discrimination. That requires proof that the employer treated those outside the protected classification more favorably, or made comments suggesting a bias, or generally that the purported reason makes no sense absent illegal discrimination.

The fact the employer failed to follow up on the probation letter is suspicious, as is the lack of any prior notice that your work was allegedly unsatisfactory. Neither fact by itself, though, would be enough to prove illegal discrimination. More factual development of your situation is required to make an informed assessment, particularly what the employer is claiming to be a legitimate business reason for its actions. Although you might disagree with the contention that your work was unsatisfactory (if that�s what they claim) or the conduct they claim is defective justifies a demotion, if the employer wants to act for trivial reasons it can do so. Only when the trivial reason is a pretext for discrimination (i.e., a cover up for an illegal motive) does it become illegal.

Two other notes: First, HR personnel are there to protect the employer, period. They do not exist to protect the employee. Do not expect them to be on your side. Second, regarding the direct report who has apparently turned against you, it is vital that you communicate to your employer that this is occurring and that it is due to your age (assuming it is or might be). Otherwise, an employer would be permitted to use this report�s negative treatment of you or of your supervision as a legitimate business reason to discriminate against you.

You should consult a lawyer or contact the Oregon Bureau of Labor & Industries, Civil Rights Division, for assistance. You need to take action promptly. Do not delay. Your rights may be lost if you wait too long to act.

The above is a general discussion of legal issues only and does not constitute specific legal advice. Obtain the advice of an experienced employment attorney who has the benefit of all the facts and circumstances.