Age Discrimination -- jobs outsourced to India

My law firm has just announced that it plans to "outsource to India" the jobs in the Word Processing and Proofreading depts. There are 25 affected employees; all (100%!) are over 40 and making higher salaries. We are the only ones in the firm who are currently being targeted, though we have several other departments whose work could conceivably be outsourced (accounting, IS, etc.). Some of us may be offered employment with the oursourcing company (while still working at the law firm, which will no longer be our employer). Others may be offered employment with the oursourcing firm which will then be free to send us to work at other law firms in the area. None of us have heard any disparaging comments about our age; this has only been presented to us as a cost-saving measure.

Do we have grounds for a lawsuit? What are our chances of prevailing?

1 answer  |  asked Mar 7, 2005 5:31 PM [EST]  |  applies to New York

Answers (1)

David M. Lira
Another Theory of Discrimination: Disparate Impact

This is an interesting question, and I'll provide a very general answer for public consumption. However, I encourage the people who posted this query to contact me or another experienced employment attorney to start a more thorough review of your situation.

There are two basic ways of proving a discrimination case. The ways are referred to as "disparate treatment" and "disparate impact."

Very generally speaking, cases involving individuals or small groups would rely on a disparate treatment theory. Although the courts have set up a confusing standard for proving a disparate treatment case which is referred to as the McDonnell-Douglas standard (the name refers to a U.S. Supreme Court case), which is increasing being turned upside down to make it more difficult for employees to prove discrimination, in disparate impact cases, employees generally need to show that the employer intended the discrimination. That is, the proof has to point to a conclusion that the employer took the action (termination, demotion, harassment, etc.) because the employee is part of a protected classification (that the employee belongs to a particular race, nationality, religion, etc.).

Disparate impact theory generally won't even work unless there are large enough numbers of employees. Disparate impact cases are usually class action cases. Disparate impact cases rely on statistics, and experts on statistics. The expert for the employees basically needs to be able to say that the numbers are such that no other explanation but discrimination makes sense.

posted by David M. Lira  |  Mar 8, 2005 2:23 PM [EST]

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