It is no secret: America's workforce is aging. The increase in older people working has been followed by an increase in age discrimination. With the current recession, and talk towards a worsening economy, Employers have shown a bias against people 40 years or older. There are many reasons for this, but primarily we have found that older more experienced workers who command a higher salary are being targeted for layoffs first as employers prepare for the worst in the coming year.
Fortunately, workers in California and throughout the United States are protected against age discrimination. Federal legislation prohibits it, but most states also have their own statutes addressing it such as California's Fair Employment and Housing Act (FEHA).
At Miller Wilmers APC, our employment law lawyers based in Los Angeles are dedicated to helping clients who have experienced age discrimination. Through fact-finding, discovery, strategic pleadings, and negotiations, our employment law attorney succeeds where others may fail. If you think an employer has discriminated against you based on your age, contact us at 661-312-8370 to schedule a Free Consultation and to learn more about any legal options available to you.
What Constitutes Age Discrimination?
Age discrimination occurs when a person receives unfair treatment due to their age as an employee or as a job applicant. The Age Discrimination in Employment Act (ADEA) is a federal law designed to protect persons who are 40 years of age or older. The employer or person acting on behalf of the employer (e.g., a supervisor, manager, or human resources personnel) can be 40 years old or older, too – the employer's age does not matter. What matters is that the victim is 40 years old or older and has suffered discrimination based on the latter fact.
Are all Employers Subject to ADEA?
Most employers are subject to ADEA, including:
- Companies with 20 or more employees
- Employment agencies
- Local government employers
- State government employers
- Federal government employers
- Labor organizations
Fair Employment and Housing Act
California's Department of Fair Employment and Housing enforces the FEHA which applies to all employers with 5 or more employees. All that is required is to show that the employee has been discriminated or harassed against due to their age. We often find that the adverse employment actions that employees are subjected to include layoffs, comments on the speed of work or ability to use technology, and threats or actual termination for the same.
What If a Younger Worker is Discriminated Based on their Age?
ADEA and FEHA protects only workers over the age of 40. .
Examples of Age Discrimination in California
Age discrimination can take different forms. Sometimes the discrimination is overt, while other times it is disguised as something else. Following are some examples of age discrimination.
Comments, Jokes, or Insults Regarding Age
Management and co-workers may demean older workers when they make age-related comments, like “Ok, Boomer!” These types of comments, if consistent and regular, can create a hostile work environment that could be considered harassment.
“Ok, Boomer!” however, is not enough on its own. The comments, jokes, and insults must be abusive and severe to be discriminatory.
Loss of Promotion Due to Age
Often what happens when age discrimination is at play is a younger, less qualified employer will get a promotion. Meanwhile, the more qualified but older employer is passed over for the promotion.
Hiring Only Younger Workers
Age discrimination can take place even during the hiring process. When a company has a record of hiring only young employees, it may be evidence of discrimination.
Employers discourage employees from discussing their salaries, but word gets around, especially when certain people are getting raises or promotions and others are not. If you have a coworker in the same role as you with similar experience but who is paid more, it could indicate discrimination. Look to see what your coworker's age, race, religion, or gender is compared to your own.
Unjust Disciplinary Action
Unfair criticism or discipline (like demotion or pay cuts) may indicate a supervisor is trying to create a paper trail to disguise any age-based discrimination.
Advertising Specifically Geared for Younger Workers
Companies cannot use advertisements to discriminate. Advertisements must be free from a preference for younger employees or an avoidance of older employees.
How Do You Prove Age Discrimination in California?
As mentioned, proving age discrimination can be a daunting task, but it is achievable. To have a prima facie case of age discrimination, an employee must establish that:
- They are 40 years old or older (or the protected age class as defined by state statute)
- Their job performance is satisfactory
- Adverse job action was taken against them (e.g., termination, demotion, or a pay cut)
- A similarly situated and substantially younger employee was treated more favorably (but this does not mean that the “substantially younger” employee must be under the age of 40 –– for example, the victim-employee might be 70 years old while the substantially younger employee is 42)
But proving the case does not end by satisfying these four elements. The employer may challenge any legal action and claim that there was a legitimate, nondiscriminatory reason. In this scenario, the employee must then prove that the employer's proffered reason is simply a pretext and that age discrimination remains the real reason.
Proving age discrimination can also be found in patterns. If an employer has a pattern of hiring only younger people, promoting only younger people, and making jokes about older people, then this can be used to help prove your case. Often, these types of cases can require considerable discovery and witness testimony.
What Should Employees in California Do if Discriminated against Based on Age?
If you are an employee and you feel that you have been discriminated against due to your age, there are certain steps to take immediately.
- Keep a detailed log of all potentially discriminatory incidents, and include dates, time, location, and names (both the discriminator and any witnesses).
- Talk to your manager or supervisor.
- If talking to your manager fails, report discrimination to Human Resources.
- Contact an attorney who handles age discrimination cases.
Prior to filing a lawsuit, keep in mind you will first need to file a complaint with the Equal Employment Opportunity Commission (EEOC). Our employment law attorney at Miller Wilmers APC will help you file this complaint and, if necessary, file a subsequent lawsuit.
Contact an Employment Law Attorney in Los Angeles Today
Age discrimination in the workplace is real and causes harm both to the victim and society. Making sure you are compensated fully and fairly for the harm is our job. At Miller Wilmers APC, our employment law attorney in Los Angeles handles these tough cases because we care about our communities and our clients. Contact us today by using our online form or calling us at 661-312-8370 to schedule a Free Consultation.
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