The Federal Reserve Bank of San Francisco posted an article in April of 2014 which highlighted the Great Recession's large increases in unemployment and the unemployment duration for workers of all ages. What the article brought forth was the correlation between the age of the worker and the longer duration of unemployment. The article theorized that there is likely age discrimination playing a major role in the duration of unemployment for older workers relative to younger workers.

As we are approaching another recession, with housing prices finally falling, we could be on the cusp of a second wave of forced retirements and downsizing that unfairly targets older workers. At Miller Wilmers APC, we have just recently seen the trend toward downsizing and the removal or employees over the age of 40 begin and it is our theory that this recession will mirror the Great Recession in terms of which type of employees, employers prefer to remove. Our California Employment attorneys are well versed in both Federal and State Age Discrimination laws and can walk you through the protections the law affords you. 

The Age Discrimination in Employment Act

The Federal Government is fully aware that employers are not exactly fighting for workers who they perceive to be on the way out. Importantly, they are aware that some employers will take additional measures to remove workers who they feel are aged and overpaid. The Age Discrimination in Employment Act prohibits discrimination against individuals who are age 40 or older, by employers with 20 or more employees, as well as by State and Local governments. 

The Act generally provides protection against discrimination with respect to hiring, firing, compensation, and all terms, conditions, and privileges of employment. The act further prohibits mandatory retirement of individuals in the protected age group or the "forced retirement" by employers through alternative means. At the federal level, workers over the age of 40, with most employers, are largely protected from discrimination, harassment, and wrongful termination for illegitimate purposes such as, the employee's age. The Act further protects employees against policies of a Company that may be neutral on their face, but have a disparate impact on the employees over the age of 40. 

The Fair Employment and Housing Act

In California, the Fair Employment and Housing Act makes it illegal for an employer (with a minimum of 5 employees) to discriminate against an employee of job applicant over the age of 40, or to allow them to receive less favorable treatment because of their age. The FEHA provides more protection in California for employees over the age of 40 and when bringing a claim for age discrimination in California it can be more strategic to do so under the FEHA. Age based discrimination is unique in that it often is not as overt or obvious as gender or race-based discrimination. Age Discrimination will often involve the following:

• Refusing to Hire older workers despite being equally or more qualified than other candidates;
• Refusing to promote existing employees because of their age; 
• Firing employees once they reach a certain age;
• Frequent Comments related to the Age or health of an employee; 
• Removal of Employee from Leadership Roles; and
• Insistence to employee to retire. 

Examples of Age Discrimination 

• An Employer is rewarding a younger, less experienced employee instead of older employees despite the older employee's high performance and expertise;
• An Employee over the age of 40 receives a demotion or loses their job for no apparent reason;
• An Employee is turned down for promotion and the Company went with a much younger Employee despite the older employee's expertise; 
• Company layoffs appear to unfairly target older employees; 
• An older Employee is constantly harassed about age in a way that creates a hostile work environment. 

Aside from the above examples, both federal and state law prohibit policies and practices of a Company that may have a disparate impact on employees over the age of 40. Even if the Company has such a policy without a deliberately discriminatory motive, if the effect of the policy is discriminatory, it can be illegal. For example, the employer has a policy that affords higher pay raises for employees who are likely to stay at the Company longer, than this could have a disparate impact on employee's who are older and viewed as on their way out whether they receive a raise or not. 

Benefits Matter

Generally, employers also cannot reduce your benefits with age, unless the cost of providing that benefit drastically increases with age. The Employer must incur roughly the same cost for providing the benefit to an older worker as they do a younger worker. This means that if an employer pays for life insurance for all employees, but a younger employee is provided a greater coverage due to a significantly reduced cost of coverage, there is no violation. If the Employer reduces incentives for an older employee or other insurance benefits that are equally afforded younger employees at no additional cost, than there is a violation. 

I Believe I am a Victim of Age Discrimination, What do I do?

In California, the first thing you need to do is contact a skilled Employment Attorney who specializes in Age Discrimination cases. You will need to file a written complaint with the Department of Fair Employment and Housing. Employees pursuing any type of discrimination and harassment claim in California must first notify the appropriate admin agency. Keep in mind the statute of limitations on a discrimination claim is no three years from the date of the alleged discrimination, extended from the previous rule of one year. Once an employee has their claim filed with the DFEH, they will receive a right to sue notice, giving the employee permission to bring their claim to civil court. 

I Still Work with My Employer; If I bring a Claim, will I be Terminated?

Employees are often concerned about the consequences of pursuing an age discrimination claim against their employer, but an employer may not take any adverse employment action, to include termination, against an employee for bringing an employment action. An Employee has a right to bring an age discrimination claim or to testify and assist in an age discrimination claim against their employer without fear of retaliation.

Age Discrimination in 2022 and Beyond

A recent study on age discrimination in the workplace showed that over 50% of workers reported witnessing age discrimination but chose not to report it; and over 70% of older workers in the technology industry have reported experiencing or witnessing ageism. This almost every worker in the industry understanding ageism to be a standard of employment. Studies are showing taht older workers are offered jobs 40% less frequently than a younger candidate with the same or similar skills. While the number of workers between the ages of 25-54 are expected grow only 2% in the next few years, the number of active workers aged between 65 and 75 is projected to grow by 75% through 2024. Older Employees simply cannot retire as young as previous generations and are likely to face immense obstacles to continue working through their old age. 

Approximately 15,000 age discrimination claims are filed with the Courts every year. This means you are not alone. If you beleive you are being mistreated due to your age, it is important to contact an attorney to discuss your protections today.