Age Discrimination

The experienced employment attorneys at Miller Wilmers APC, a Los Angeles, California based law firm, have extensive experience with age discrimination. In fact, Caleb A. Miller has published his writings on the correlation between economic recession and age discrimination. It is no secret that when a company is downsizing, or looking to save on costs, it is the older employees who may be let go first. As the economy worsens, age discrimination increases in direct proportion and this is no excuse to treat differently, or expose to alternate working conditions employees of a heightened age.

Age Discrimination 

Those born from 1946 to 1964 are the fastest growing segment of the population filing discrimination claims today. In 2012, the EEOC reports 22,875 people filed age discrimination claims against employers, which is an increase from the 15,875 filed in 1997. The rise in numbers has been blamed on the state of the economy, as companies are cutting costs to protect the bottom line. There is a widely accepted perception that a younger employee is less expensive than an older and more experienced employee, which makes it difficult to keep a job and even to find a new job above a certain age. Statistics have shown that it can take someone over 40 years of age, six months longer to find a new job than someone right out of college. This type of discrimination is difficult to prove and many attorneys won't even take the case. That is not the case with Miller Wilmers APC. Our California age discrimination lawyers are innovative, persistent, and motivated to take a stand on important issues. 

Identifying Age Discrimination in the Workplace

You may have been the victim of age discrimination if you experienced any of the following:

  • You were passed over for a position or promotion because the employer was looking for a younger-looking person
  • You have received negative feedback in official evaluations accusing you of a lack of “flexibility” in taking on further responsibilities
  • You lost your job so your boss could keep younger workers who require less pay
  • You were passed over for a promotion in favor of a younger employee outside the company due to the company “needing new blood”
  • Company layoffs resulted in a majority of older, more established workers being laid off, leaving younger, less experienced workers
  • Your supervisor made age-related comments about you before your firing, such as calling you “ancient” or “over the hill”

*Author's Note: I have seen Age Discrimination in the form of a failure by the Company to continue the training of an employee on updated equipment, software and other technology that made the job easier. The reasoning being the employee was older and wouldn't be around much longer or may not understand technology as well as some younger employees. This willingness by the Company to train younger employees but not to train older employees absolutely affects an older employees' ability to earn income, promotions and raises and is textbook age discrimination. Remember, discrimination is not just mean words, it can be an effort to stall your career or to prevent you from moving forward.

Age Discrimination in Employment Act

Under the Age Discrimination in Employment Act, it is unlawful to discriminate against a person because of their age in determining employment, promotions, compensations, benefits, job assignments, and training. Any term or condition of employment, hiring, firing, layoff, promotion, or job assignment cannot be determined by the person's age.

This act provides several protections for employees, such as:

  • Employers may not retaliate against an employee for filing a charge of age discrimination, nor for participating in an investigation under the ADEA
  • Employers may not list preferences, specifications, or limitations for age in job notices or advertisements, though exceptions are made when a position requires experience minimums
  • Employers may not bar individuals from apprenticeship programs on the basis of age
  • Employers may ask an applicant's age or date of birth, but if age discrimination charges are filed, they will be scrutinized as to the reason for these questions

If you are asked by your employer to sign a valid ADEA waiver, consult a lawyer first. There are many conditions that must be met for this waiver to be considered valid. You will want to consult an attorney to make sure your rights are protected before signing anything.

California Fair Employment and Housing Act

California's  age discrimination laws are found in the Fair Employment and Housing Act, or FEHA.  FEHA applies to employers, which include corporations and other types of businesses, that regularly employ at least 5 employees. 

Before filing an age discrimination claim, employees must exhaust their remedies by filing with either the Department of Fair Employment and Housing (also known as DFEH) or the Equal Employment Opportunity Commission.

The burdens of proof are different under California and federal law.  In general, an employee's burden of proof is easier under California law, where the employee only has to show that age was a “substantial motivating factor” in an employment decision.  Under federal law, an employee must show that the employer made a decision because of the employee's age.  (This is sometimes referred to as a but-for test.) This distinction can be extremely important in a close case and it is not always obvious how these matters should be argued. The Attorneys with Miller Wilmers APC understand the burden of proof employees face and how to argue the facts appropriately to secure a favorable award. Contact us for a FREE consultation.  

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