Age Discrimination in the Workplace

Even though its 2017, age discrimination still happens. Older workers are just as capable as younger employees. They have a right to fair employment opportunities. California’s employment law prohibits age discrimination against employees over the age of 40. This includes firing, refusing to hire, demoting, and harassment. This page details all of the major topics regarding age discrimination in the workplace:

• What is the Legal Definition of Age Discrimination?
• What Laws Are in Place to Deal with this Problem?
• How an Employer Can Prevent an Age Discrimination Lawsuit
• Filing an Age Discrimination Lawsuit

What is the Legal Definition of Age Discrimination?

What is the legal definition of age discrimination in employment? Basically, it is when the employer takes the age of the individual into account when making decisions about employment. This could include any of the following acts that can trigger a successful age discrimination lawsuit:

• The employer hires a younger-looking person
• An older employee is fired because the employer wants to hire younger employees who are paid less
• A long-term employee is passed over for a promotion and a younger person was brought in from outside of the company to fill the position
• In companywide layoffs, the majority of those let go are older with more seniority
• The employer makes comments about the older employee’s age before he/she is fired
• Giving an older employee’s usual responsibilities to a younger employee when the older employee is fully capable of continuing with those tasks [Gross v. FBL Financial Services, Inc.]

Of course, there are many other ways that age discrimination comes out at work. If you are unsure if you’ve been discriminated against because of your age, talk to an experienced employment law firm immediately.

What Laws Are in Place to Deal with this Problem?

Employers are not allowed to discriminate against age when they make decisions about employment at their company. Federal and California state laws protect employees, volunteers, interns, apprentices, job applicants, and contractors of employers who meet the requirements. Below are the federal and state age discrimination laws.

California Fair Employment and Housing Act (FEHA)

This state law prohibits discrimination on the basis of age in California workplaces. It is similar to what the Age Discrimination in Employment Act (below) covers, but it has a wider coverage. The California Fair Employment and Housing Act, administered by the Department of Fair Employment and Housing (DFEH), applies to employers who have a minimum of 5 employees, whereas the Age Discrimination in Employment Act covers those with 20 or more employees. This is the most powerful law that employees can leverage. It is the main law used by anti-discrimination employment lawyers in California.

Age Discrimination in Employment Act (ADEA)

This federal law prohibits age discrimination in employment. Originally, the Age Discrimination in Employment Act protected people who were between the ages of 40 and 70; however, during the Reagan administration the upper limit of age 70 was removed. The ADEA is applicable to employers who have a minimum of 20 employees. This includes the following job decisions that cannot be based on age:

• Hiring
• Firing
• Providing better compensation to younger workers
• Layoff only older workers
• Make assumptions that older workers aren’t as good with technology or are getting ready to retire and won’t be staying with the company long

The Older Worker’s Benefit Protection Act of 1990

The Older Workers Benefit Protection Act of 1990 is an amendment to the Age Discrimination in Employment Act. It specifically talks about benefits. Employers are required to offer the same benefits to older employees as they do younger workers. This rule applies to benefits that don’t cost the employer more to offer older workers. For example, health benefits or life insurance may cost more for older individuals to be covered, so employers are allowed to offer different benefits in this situation.

Employer Failure to Prevent Age Discrimination Lawsuits

CA’s main anti-discrimination law, CA Govt Code 12940(k), says that employers are required to take all reasonable steps necessary to prevent discrimination and harassment. If you feel like your employer is turning a blind eye to age discrimination, you may be on to something. Employers should not:

• Ask applicants for their age
• Denying an older employee benefits that are given to other employees
• Allowing a hostile work environment in which younger employees harass or discriminate against older employees who are over age 40
• Assigning menial tasks to older employees because you think that they can’t handle other work

Filing an Age Discrimination Lawsuit

Before you do anything, you should contact an employment lawyer as soon as you suspect that you are being discriminated against because of your age. A lawyer will help you determine if you are indeed being discriminated against because of your age; if that is the case, the lawyer can help guide you in gathering strong evidence of age discrimination for a successful lawsuit.

In order to file an discrimination lawsuit, you should

1. Take notes that record detailed descriptions of all instances of age discrimination. Explain why you think that action or behavior is motivated by age. Also include all of your and your employer’s contact information too.
2. Talk to fellow co-workers to ask if they have seen similar behavior. DO NOT record these conversations or conversations with your employer. Its a violation of state law to record people without their consent or knowledge.
3. Talk to a lawyer to figure out if you have a case that is worth pursuing. Your lawyer will decide whether to file a claim with the the federal EEOC, California state DFEH, or the Division of Labor Standards Enforcement.
4. File an administrative charge with the EEOC or DFEH. If you’re able to hire an attorney, he or she will do this for you. After you obtain a right to sue letter, you can proceed to court. If you file with DFEH, you must file in court within 1 year of obtaining the right to sue. Lastly, keep in mind that if you do receive the “right to sue” letter, you only have 90 days to file a discrimination lawsuit; after the 90 days, you cannot take any action for the discrimination.

Because of these statutes of limitations (and a variety of other reasons) it is critical that you talk with an employment law firm as soon as possible. Age discrimination in the workplace is extremely unfair and can have devastating consequences on victims. Call us today to talk to our employment attorney for an over-the-phone or in-person consultation and see what your next steps should be.