Can I sue for discrimination because my replacement has the same title and fewer job responsibilities but is exempt whereas I was hourly?

I singlehandledly ran the marketing department of a 12M company for 18 years. For most of those years I asked my employer to make me exempt but they refused on the grounds that I didn’t manage anyone. At 60 I have now semi-retired and am working for the company 20 hours per week from home, doing 50 of my former responsibilities. I am still punching a clock online. The company hired a successor to handle the portion of my duties I no longer do. He is a 24 year old male; I’m female. He was given the same title I have and works full-time. However, he was hired as salaried. He is not in any respect a manager. So, same title, I have more experience and longevity, and his responsibilities are reduced, however he could be salaried and I could not? Would I have grounds to sue for discrimination? And would it be worth it since I cannot prove my salary was ever insufficient for the job?

Asked on September 24, 2016 under Employment Labor Law, Wisconsin


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

Being salaried vs. being hourly is not discrimination--that's just a function of how you are paid, not of the value of your job or if you are paid fairly. *Possibly*, if the younger male replacement makes significantly more than you did (i.e. the difference is not trivial or nominal) for the same job, that may indicate discrimination, so long as there is not some objective difference--e.g. he has a degree or qualification or certification you lack--between the two of you which could explain or justify the distinction. But simply being paid hourly vs salaried by itself is irrelevant--for example, I am an attorney and salaried, but I know for a fact that there are senior police officers in my town who are hourly but make as much or more than I. Being salaried is not necessarily in any way better--just different. You need to have some way in which, without justification, the younger male is treated/paid better than you to potentially have a case.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.