Age Discrimination

Ageism, which refers to negative discriminatory practices against older people, is common in our society, this includes discrimination in the workplace based on a person being older.

According to a survey conducted by the AARP (formerly called the American Association of Retired Persons) nearly 1 in 4 workers age 45 and older have been subjected to negative comments about their age from supervisors or coworkers. 61% of workers age 45 and older have either witnessed or experienced age discrimination in the workplace. According to a study conducted by the University of California, Irvine, job applicants over 40 years of age are only about half as likely to obtain a job offer than younger workers if the prospective employer knows their age. Ageism often arises from the perception based on age-based stereotypes that older workers are slower, less motivated, take more time off for health reasons, or are resistant to change or learning how to utilize new technology. Compensation is also a factor. Older workers tend to stay with employers longer than their younger counterparts and seasoned employees tend to earn more money than their younger coworkers. Therefore, even though workers as they age tend to accumulate experience that should make them more valuable in the workplace, employers sometimes push out older workers in favor of hiring young and inexperienced workers as a cost-cutting measure. To combat age discrimination in the workplace, both California and the Federal Government have laws prohibiting discrimination against older workers.

Pursuant to the California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, it is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge a person from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment (including pay and fringe benefits) because of the employee's or job applicant’s age. California Government Code section 12940(a).

The Department of Fair Employment and Housing (DFEH) is responsible for enforcing state laws such as the FEHA, which make it illegal for an employer or prospective employer to discriminate against an employee or job applicant not only because of age but also because of other protected characteristics such as race, sex, and disability. Any employee or job applicant, regardless of his or her immigration or citizenship status, can file an employment discrimination complaint with the DFEH. The employment discrimination complaint can be filed online through the California Civil Rights System, or via mail or email. Generally, the employment discrimination complaint must be filed with the DFEH within three years from the date the discriminatory act occurred. Before you can file an age discrimination case in a California court of law, an employment discrimination complaint must be filed with the DFEH, and you must request and receive a “right to sue” notice.

The age discrimination provision of the FEHA applies to any employee of 40 years of age or older working for a qualified employer. A qualified employer in the context of age discrimination generally includes any California employer “regularly employing five or more persons.” This includes both private and public employers. California Government Code section 12926. Because it is unlawful to fire someone for having reached an age of 40 years or older, retirement or pension plans which require retirement at a certain age are typically unlawful as well. California Code of Regulations, title 2, sections 11084-11085.

In order to bring a claim for discrimination based on an employee's or job applicant’s age, the plaintiff needs to prove that he or she:

• was forty years of age or older at the time of the discriminatory act,
• that the employee's job performance was satisfactory, or that the employee was qualified for the job they were not hired for,
• that the employee was subjected to discriminatory conduct, (Ex: being discharged from work, denied a promotion),
• and that other and younger employees (i.e., who were thirty years of age) were not subjected to the discriminatory actions of the employer. (Ex: thirty-year-old workers retained similar jobs, or the employee who is bringing the claim is sixty-five years of age and lost his or her position to a younger individual).

It is not always necessary to show that a younger worker replaced the older plaintiff. Merely showing that younger individuals retained similar jobs, while the older plaintiff lost his or her job, may constitute enough evidence to show discrimination. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 367. Downsizing the work force also is no excuse for discriminating specifically against older employees. California Code of Regulations, title 2, section 11076.

Like the FEHA, the federal Age Discrimination in Employment Act of 1967 (ADEA), United States Code, title 29, sections 621-634, also forbids age discrimination in the workplace against people who are age 40 or older. Therefore, in addition to filing an employment discrimination complaint with the DFEH, you may file a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC), which enforces the ADEA. All federal laws enforced by the EEOC applicable to age discrimination require you first to file a charge of discrimination with the EEOC. Generally, you must file a charge of discrimination with the EEOC within 180 calendar days from the day the discrimination took place. The 180 calendar day filing deadline is extended to 300 calendar days if a state agency (which in the California is the DFEH) enforces a law that prohibits employment discrimination (which in the California is the FEHA) on the basis of age.

The FEHA proscribes (forbids) two types of discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her age (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees over a certain age (referred to as disparate impact discrimination). Knight v. Hayward Unified School District (2005) 132 Cal.App.4th 121, 128-29 (discussing disability discrimination). There is a presumption of discrimination whenever a facially neutral practice has an adverse impact on employees or job applicants age 40 or older, unless the practice is job-related and consistent with a business necessity defense recognized under California law. California Code of Regulations, title 2, sections 11076, 11010(b).

Aside from clearly unlawful cases where an employer directly explains to an employee forty years of age or older that he is firing her due to her age, wrongful terminations based on age discrimination may also be inferred from the circumstances surrounding the discharge of employment. For instance, if an employer terminates an older employee solely because she was unable to move around the space behind a customer service counter at a certain speed, he would have terminated her for an issue related directly to her age or health. At the same time, however, in order to be successful on the claim, the employee may have to show either that moving at a certain pace was not a skill central to the performance of the job for which she was hired or that she would have been able to move at the required pace or otherwise perform the task required if provided a reasonable accommodation.

Under the FEHA, depending on the circumstances, an employee or job applicant who files a complaint of employment discrimination can be entitled to:

• Past lost earnings,
• Future lost earnings,
• Reinstatement to the job position from which she was demoted or the employment from which she was fired, or requiring the prospective employer to hire her for the position she was denied,
• Reversal of a reduction in pay,
• Damages for emotion distress, or
• Attorneys’ fees and costs.

If you have experienced discrimination at your workplace based on your age, or if you believe your employer has otherwise violated your rights, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact us via our online form.