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 must be aware of the legal safeguards in place to protect workers aged 40 years or older against discrimination. 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.
At Law Offices of Albert Chang, our employment law lawyer based in California is committed to ensuring that employers adhere to anti-age discrimination regulations. We employ rigorous fact-finding, discovery, strategic pleading, and negotiation techniques to resolve age-related discrimination cases effectively. If you have concerns about a potential age-based discrimination incident involving an employee, contact us today by filling out our ONLINE FORM or calling us at (310) 769-6836 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 California Fair Employment and Housing Act (FEHA) is California’s state equivalent to the federal ADEA and provides additional protections beyond what the ADEA offers. 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 and FEHA?
Most employers are subject to ADEA and FEHA, including:
- Companies with 5 or more employees (lower than the ADEA’s 20-employee requirement)
- Employment agencies
- Local government employers
- State government employers
- Federal government employers
- Labor organizations
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 occur even during the hiring process. When a company has a record of hiring only young employees, it may be evidence of discrimination.
Unequal Pay
Word can get around, especially when certain people are getting raises or promotions and others are not. If there are disparities in the compensation of workers who share the same role and possess similar levels of experience, this may raise concerns related to potential discrimination based on worker’s age, race, religion, or gender.
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 Can Your Employee Prove Age Discrimination against You?
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 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 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. Violations of age discrimination laws can lead to fines and lawsuits. An employer can be ordered to pay lost wages and other types of compensation and may be required to reinstate or promote the worker.
Some of the policies and procedures that can be put into place are described below.
Employee Training
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.
Contact Our Office Today
Age discrimination in the workplace is real and causes harm both to the victim and society. Making sure your business is in fully compliance with the anti-discrimination law involving age. At Law Offices of Albert Chang, our employment law attorney in California handles these tough cases because we care about our communities and our clients. Contact us today by filling out our ONLINE FORM or calling us at (310) 769-6836 to schedule a free consultation.