The Supreme Court has held that an employee who is over 40 may sue for discrimination if he or she is replaced by a "significantly younger" employee, even if the replacement is also over 40.

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You can't get around the ADEA by replacing employees over 40 years of age with those who are also over 40. In O'Connor v. Consolidated Coin Caterers Corp., the U.S. Supreme Court held that an employee who is over 40 years of age might sue for discrimination if a "significantly younger" employee replaces him or her, even if the replacement is also over 40. The Court didn't specify what "significantly younger" meant, but O'Connor had been replaced by someone 16 years younger.

The Supreme Court Has Held That an Employee Who Is