It is no secret: America's workforce is aging. The increase in older people working has been followed by an increase in age discrimination. Employers have shown a bias against people 40 years or older. 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. Unfortunately, proving age discrimination can be difficult.
At Castle Law: California Employment Counsel, PC, our employment law lawyer based in California is 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 916-245-0122 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
What If a Younger Worker is Discriminated Based on their Age?
ADEA protects only workers over the age of 40. Some states, however, have enacted laws to protect workers who are younger than 40 years of age.
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 Employers in California Do to Prevent Age Discrimination?
Employers must take precautionary measures to prevent age discrimination. Some of the policies and procedures that can be put into place are listed below.
All employees, even those in positions of leadership, can benefit from training on what age-based discrimination is and how to avoid it. Without this type of training, employees may participate in age-based discrimination and not even be aware of what they are doing. Proper training should include examples of age-based discrimination and alternative ways to approach situations.
It is important, also, that employees learn how to work with people from different backgrounds, including different races and religions along with different ages.
Performance-Based Reward System
Employee rewards should be based on the actual work of employees and in a way that is able to be easily measured. When rewards are determined based on arbitrary measures, it is easy for there to be discrimination, even if it is unintentional. Also, if an employer is accused of age discrimination, being able to show that the rewards are based on an actual, measurable performance-based system will help to show that they are not being discriminatory.
Review and Implement Policies to Avoid Age Discrimination at All Stages
Employers should implement policies that serve as a way to ensure discrimination does not occur. These policies should address all stages of employment, from advertising for employees to lay-offs. This policy should be clearly explained. Penalties should be established for policy violations.
Examples of policies employers can implement include:
- Remove employee date of births from any documentation where it is not required
- Hold all employees to the same standards and punish all in the same way
- If forced to lay off employees, do not base termination on employee age
- Provide training on an annual basis
- Make it clear that employees can report any discrimination without fear of retaliation
- Create mentorship programs for new employees and those with tenure to build bonds and promote mutual respect
There may be other state-specific precautions that employers should consider.
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 Castle Law: California Employment Counsel, PC will help you file this complaint and, if necessary, file a subsequent lawsuit.
Contact an Employment Law Attorney in California 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 Castle Law: California Employment Counsel, PC, our employment law attorney in California 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 916-245-0122 to schedule a free consultation.