The patterns I see most often in age discrimination cases:
- An experienced employee — 50s or 60s, often with a long track record — is suddenly put on a performance improvement plan for issues that were never raised before, and terminated shortly after.
- A reduction in force (“RIF”) disproportionately targets older workers, and the employee is replaced by someone significantly younger doing substantially the same job.
- Age-coded comments start creeping into performance feedback: “tired,” “out of touch,” “not a digital native,” “needs fresh perspective,” “not a cultural fit” for a “dynamic” or “high-energy” team.
If any of this fits your situation, you may have a case under the federal Age Discrimination in Employment Act (ADEA) or Michigan’s Elliott-Larsen Civil Rights Act (ELCRA). Age cases are harder than most discrimination cases — the causation standard is demanding — but the fact patterns are often well-documented and the comparator evidence is often powerful.
I’m Warren Astbury. I’m a Harvard Law graduate (2009) with 15 years of experience and 50+ trials to verdict. I represent Michigan employees — only employees, never employers — in age discrimination, retaliation, and wrongful termination cases.
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The three-question age discrimination intake filter
1. You are 40 or older. Age discrimination protections under the ADEA apply only to workers age 40 and up. Michigan’s ELCRA protects workers of all ages, but the overwhelming majority of age cases involve older workers.
2. You were terminated, demoted, forced out, not hired, not promoted, or otherwise treated worse than younger workers — and age was a factor in the decision.
3. You have evidence that age played a role. Comparator evidence (a younger replacement, or younger employees treated differently), age-coded comments from decisionmakers, a pattern of older workers being pushed out, or a RIF that disproportionately affects workers 40+.
If those three are true, call 814-821-1140 or request a free case evaluation →.
The laws that protect older workers
Age Discrimination in Employment Act (ADEA) — 29 U.S.C. § 621 et seq. The federal statute. Prohibits age discrimination against workers 40 or older. Applies to private employers with 20 or more employees and to state and local governments. Covers hiring, firing, promotions, layoffs, compensation, benefits, training, job assignments, and virtually all terms and conditions of employment.
Michigan’s Elliott-Larsen Civil Rights Act (ELCRA) — MCL 37.2101 et seq. Michigan’s state civil rights statute. Prohibits age discrimination without a minimum age cutoff — protects workers of all ages. Applies to employers with one or more employees.
Older Workers Benefit Protection Act (OWBPA). A federal amendment to the ADEA that imposes strict requirements on any agreement where an employee waives ADEA rights — for example, a severance agreement. To be enforceable, an ADEA waiver must meet specific disclosure requirements: it must be in writing, written in plain language, specifically reference ADEA rights, advise the employee to consult an attorney, allow 21 days for review (or 45 days in group layoffs), and allow 7 days to revoke after signing. Waivers that don’t meet these standards are unenforceable — even if you already signed.
How age discrimination is actually proven
Employers rarely openly admit age was the reason. Most age cases are proven circumstantially through the same McDonnell Douglas burden-shifting framework used in other discrimination cases:
Step 1 — You establish a prima facie case by showing:
- You’re 40 or older
- You were qualified for the position
- You suffered an adverse employment action
- The action occurred under circumstances suggesting age was a factor — typically, that you were replaced by someone substantially younger (usually at least 10 years younger), or that younger workers were treated differently
Step 2 — The employer offers a “legitimate, nondiscriminatory reason” — poor performance, restructuring, policy violation, etc.
Step 3 — You prove the reason is pretext — a cover story, not the real reason. Pretext evidence includes shifting explanations, weak documentation, comparator evidence, pre-termination performance records inconsistent with the stated reason, and age-coded statements from decisionmakers.
The “but-for” causation standard
Age cases have one important wrinkle. Under the ADEA, the Supreme Court held in Gross v. FBL Financial Services (2009) that age must be the “but-for” cause of the adverse action — meaning it’s not enough to show age was a factor, you have to show the action wouldn’t have happened but for your age. This is a higher causation standard than Title VII, where age-related evidence is easier to establish as “a motivating factor.”
Michigan’s ELCRA has not adopted the Gross standard — ELCRA age claims can sometimes proceed under a less demanding standard. This is one reason we often plead under both statutes when possible.
Common age discrimination fact patterns
Pattern 1: Sudden “performance issues” after years of good reviews
You worked at the company for 10+ years with consistently positive reviews. In the last 6–12 months, a new supervisor or a performance improvement plan (“PIP”) appears. Issues that were never raised before are suddenly formal concerns. You’re terminated shortly after.
The pattern signal: review history inconsistent with the termination rationale.
Pattern 2: RIF targeting older workers
Your employer announces a reduction in force or restructuring. When you look at who was laid off, the list skews heavily toward workers over 50. The statistical imbalance — sometimes combined with subjective selection criteria the employer can’t defend — is the heart of the case. Disparate impact claims under the ADEA allow RIFs to be challenged where the selection process disproportionately affects older workers, even without proof of intent.
Pattern 3: Replaced by someone significantly younger
You were terminated. Shortly after, your duties are assumed by — or your replacement is — someone a decade or more younger. The replacement doesn’t have your qualifications or experience. If the replacement is 10+ years younger, that alone can support an inference of age discrimination under Sixth Circuit precedent controlling in Michigan.
Pattern 4: Age-coded comments from decisionmakers
“You’re not a cultural fit for our dynamic team.” “We need fresh perspective.” “You’re not a digital native.” “We’re looking for younger, high-energy talent.” Statements like these from supervisors, interviewers, or decisionmakers are often powerful evidence when attached to an adverse action that follows. Context matters — stray remarks from non-decisionmakers carry less weight, but comments from the person who made the termination decision are central evidence.
Pattern 5: Denied promotion or hiring because of age
Less common than termination cases but real. If you were a qualified applicant who was passed over for a younger, less-qualified candidate, the comparator evidence is often the crux of the case.
What damages are available
Under the ADEA, you can typically recover:
- Back pay — lost wages and benefits from termination through trial
- Front pay — lost wages after trial, when reinstatement isn’t feasible
- Liquidated damages — an amount equal to back pay, doubling your lost-wages recovery, if the violation was “willful”
- Attorney’s fees and costs — paid by the employer if you prevail
Two categories of damages are not available under the ADEA: compensatory damages for pain and suffering, and punitive damages. However, those damages may be available under Michigan’s ELCRA for the same facts, which is why we typically plead both statutes when possible.
For a detailed walkthrough of how back pay and front pay actually get calculated, see the Wrongful Termination hub →.
Severance agreements — don’t sign without reading this section
If you’ve been offered a severance agreement tied to a termination, and you’re 40 or older, the OWBPA requires the agreement to meet specific standards before any ADEA waiver in it is enforceable. Even if you’ve already signed, if the agreement doesn’t comply with OWBPA — it’s not in plain language, it doesn’t reference ADEA rights specifically, it doesn’t give you 21 days to consider (or 45 days in group layoffs), or it doesn’t give you 7 days to revoke after signing — the ADEA waiver portion is void.
If you were offered severance and haven’t signed, call first. An OWBPA review is quick, and the small amount of time you spend can dramatically change the value of your position.
Frequently asked questions
Do I have to be 40 to have an age discrimination claim in Michigan?
Under the federal ADEA, yes — the statute protects workers 40 and older. Under Michigan’s ELCRA, no — there is no minimum age for age discrimination claims. That said, the vast majority of age cases involve older workers because employer bias against younger workers is much less common in practice.
My replacement is only 5 years younger than me. Is that enough?
Usually not on its own. The Sixth Circuit (which covers Michigan) generally requires at least a 10-year age gap between the plaintiff and the replacement to support an inference of age discrimination, though smaller gaps can work when combined with other direct or circumstantial evidence.
I signed a severance agreement. Can I still sue?
Possibly. If the severance agreement doesn’t meet OWBPA requirements, the ADEA waiver portion is unenforceable and you may still have an ADEA claim. Non-ADEA claims (ELCRA, Title VII, etc.) are evaluated separately and may still be viable depending on the release language and the facts. Bring the agreement to a consultation; we’ll work through it.
My company says my layoff was “business-driven.” Does that defeat the case?
Not on its own. Nearly every RIF or layoff is framed as “business-driven.” The question is whether age played a role in who was selected. Disparate impact analysis (showing statistically that older workers were disproportionately chosen) or evidence of subjective selection criteria that favored younger workers can both carry the day.
How long do I have to file an age discrimination claim?
Under the ADEA, you must file a charge with the EEOC within 300 days of the discriminatory act in Michigan. After the EEOC issues a Notice of Right to Sue, you have 90 days to sue in federal court. ELCRA’s statute of limitations is three years. Don’t rely on this page for your specific deadline — call, and we’ll work through it.
Ready to talk?
If you were terminated, pushed out, passed over, or subjected to age-coded treatment at work, call 814-821-1140 or request a free case evaluation →. If you were offered a severance agreement and you’re 40 or older, call before you sign. Free consultation, 15–30 minutes, honest answer at the end.
Astbury Law, PLLC 607 Shelby Street, 7th Floor, #1115 Detroit, MI 48226 814-821-1140 · warren@astburylaw.com
Past results do not guarantee future outcomes. The information on this page is for general educational purposes and is not legal advice. No attorney-client relationship is created by reading this page or submitting a form.