The pattern is relatively common: employees close to retirement age claim age discrimination when replaced by a substantially younger worker. But how much differential in age represents a "substantially younger" inference of age discrimination? Clearly, replacing a 68-year-old with a 65-year-old would not trigger any inference to base a claim upon, but what about the more typical situation of a late fifties employee replaced by an early forties employee? The Federal Circuit Courts of Appeal have been split on this issue of replacing one protected age group worker with another-where both are protected class (over age 40) workers.
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