Are You Experiencing Age Discrimination At Work?

No matter what your age is, you may feel as though you have faced discrimination at work because of it. Perhaps you are under the age of 25, and your co-workers make jokes about your youth. Or you might be over the age of 40, and you find yourself being marginalized in favor of younger workers. While both situations can be challenging, only one qualifies as age discrimination under California law.

What Is Age Discrimination?

If you are age 40 or older, it is against the law for your employer to discriminate against you on the basis of your age. Importantly, these laws only apply to people who are 40 or older — and not to anyone younger than 40.

California Law On Age Discrimination

Under California’s Fair Employment and Housing Act (FEHA), employment discrimination based on age for anyone aged 40 or older is illegal. This law also prohibits unions and labor organizations from excluding, expelling or restricting membership to a person based on age.

Age discrimination often arises because employers have certain prejudices about employees who are older. Typically, this relates to qualifications (such as ability to use technology), job performance, health, or even productivity. Because these stereotypes are most often applied to older workers, the law only provides protection for workers over the age of 40.

This type of discrimination can take many forms. In many cases, an older employee is simply fired or laid off. However, there are many other ways that an employer might discriminate against a worker over the age of 40, such as reducing salary, demotion, denying a promotion, denying medical leave, refusing to provide an accommodation, or forcing a transfer.

Age discrimination may not be obvious. Employers are often savvy about the law, and know they cannot admit you are being fired because of your age. However, there are a number of indirect ways to show that a worker was discriminated against because of their age. For example, if an employee has regularly gotten great performance reviews, but suddenly receives a negative review, demotion and/or salary reduction, the negative review may be a pretext. If the company is consistently demoting older employees while promoting younger people, it may be also be evidence that they are engaging in age discrimination.

Most of the time, age discrimination cases are proven by only circumstantial evidence since employers will never admit to illegal conduct. Under the law, circumstantial evidence is given the same weight as direct evidence, This is why a good employment attorney will look for circumstantial evidence (like the above) to help strengthen your case, including other workers who were also demoted or fired because of their age (known as “me too” witnesses).

Other types of workplace discrimination and harassment based on age may also be illegal. For example, if Mark — who is 50, and much older than most of his co-workers — regularly hears jokes about his age at work, that may be a form of age discrimination. If Mark reports those same “jokes” to his supervisor, and is punished for making the report, then he may have a claim for workplace retaliation as well.

In some cases, an employer may try to justify age discrimination as a way of cutting costs. Under the FEHA, this practice is illegal if it disproportionately impacts older employees. Similarly, it is against the law to set mandatory retirement ages (with a few exceptions).

Employers can ask for an applicant’s date of birth or age in job applications. However, this information cannot be used to reject job applicants due to their age. Similarly, employers can recruit potential employees at schools, colleges and universities. But if those programs are designed to avoid age discrimination laws, it may be illegal.

Can I File A Lawsuit For Age Discrimination?

Age discrimination is a violation of both federal and state law. If you believe that you have been discriminated against on the basis of your age, then you may be able to file a lawsuit against your employer. However, in order to do so, you must first file a complaint with either the federal Equal Employment Opportunity Commission (EEOC) or the Department of Fair Employment and Housing (DFEH). Both the FEHA and the federal Age Discrimination Employment Act (ADEA) require taking this step before filing a lawsuit.

With the help of an Orange County employment law attorney, you can decide whether it is best to file with the EEOC or DFEH, and then put together a claim, complete with supporting documentation. The agency will then review the allegations in your complaint, and either (1) prosecute the case on your behalf or (2) issue a right to sue notice. With a right to sue notice, your lawyer can file a lawsuit in state or federal court.

There are strict deadlines for filing a complaint with either the EEOC or the DFEH. Throughout the process, additional deadlines will also arise. If you miss one of these deadlines, then you may be barred from filing a lawsuit.

What Type Of Damages Can I Recover For Age Discrimination? 

Age discrimination lawsuits may lead to a settlement or award at trial for any damages (losses) that you have suffered. Generally, the goal of these damages is to make you whole again, or to put you back in the position that you would have been in had the discrimination not happened. In this type of case, you may be eligible for monetary damages, punitive damages and potentially equitable relief. If you win your case in court, your employer may also be required to pay your legal fees and court costs.

Monetary compensation may include back pay/wages, benefits, bonus payments, higher income from a promotion and/or raise, pain and suffering, and emotional distress. If an employer has intentionally discriminated against an employee, they may also be liable for punitive damages. This type of damages is meant to penalize a wrongdoer and deter others from engaging in similar conduct.

Finally, equitable relief may be appropriate in many cases.  Equitable relief occurs when a judge orders an employer to do something, like re-hire an employee that they fired or promote them. While equitable relief may be a possibility in age discrimination cases, employees often are not interested in going back to work for an employer who treated them badly. If you are considering a lawsuit based on age discrimination, talk with your Orange County employment law attorney about whether you would want to be re-hired or obtain another form of equitable relief.

Too often, employers buy into stereotypes about older workers. Employees who are aged 40 or older may suffer discrimination based on their age. In these situations, older workers may be able to file a lawsuit against their employer to recover damages for their losses.