Age Discrimination Lawyer

Age discrimination is one of the most common forms of discrimination in both the United States as a whole and in California alone. It is a serious problem affecting large portions of the population. Data from the Equal Employment Opportunity Commission (EEOC) and from the Department of Fair Employment and Housing (DFEH) confirm this fact.

Data from the EEOC shows that in 1997, there were 15,785 age discrimination cases nationwide. These cases made up 19.6% of all discrimination cases. In 2019, two decades later, the number of cases remained relatively the same at 15,573, making up 21.4% of all discrimination cases nationwide.

In California, data from the DFEH in 2017 shows that age discrimination is the number one reason for all employee complaints and requests for right-to-sue letters and retaliation cases. There were 1,836 age discrimination employment complaints, making up 19% of all employee complaints. There were an additional 8,331 requests for the right to sue, making up 15% in that category. Though this is the latest available data and it’s from 2017, these numbers have been pretty consistent in recent years.

Age discrimination is a serious problem. If you believe you have been discriminated against based on your age, you need to speak to an attorney as soon as possible to consider all remedies and options available to you.

Age discrimination occurs when an employer treats an employee disparately based on that employee’s or job applicant’s age. Though there are federal laws prohibiting age discrimination – specifically the Age Discrimination in Employment Act (ADEA) – in the workplace, California has laws that address this type of discrimination, too. The Fair Employment and Housing Act (FEHA) and other laws protect employees who are aged 40 years old or old from age discriminatory actions and policies put forth by employers.

Both federal and state laws are applied when a person brings an age discrimination case. Typically California courts use the ADEA to interpret the FEHA. When there is a difference between these laws, however, the courts will reside with the law providing the highest standard of protection for persons age 40 years and older. That said, California laws – the FEHA namely – are more protective of employee rights than federal laws, and California courts must interpret California laws broadly to provide the most protections to older employees.

According to California law, employers are prohibited from:

• terminating
• selecting for layoff
• demoting
• denying advancements or other privileges of employment

employees who are 40 years old or older based on their age.

Employers cannot treat employees differently based on their age with regard to:

• compensation
• raise considerations
• work conditions
• job assignments
• terms of employment
• retirement requirements
• benefit packages
• apprentice programs.

Employers also cannot stereotype older employees. For example, a common stereotype is that older people are slower to learn new technologies or methods of conducting work. These types of stereotypes are unlawful if they are a motivating factor in denying employment to a person, refusing to promote, overlooking the employee for training or other programs, or, among other things, laying the person off.

Employers are also prohibited from retaliating against employees aged 40 years or older who complain that they have been discriminated against based on their age.

There are possible two exceptions, one that deals with the type of employer and the other that involves the type of practice.

The first exception involves an employer that is also a religious organization. Religious organizations are not held subject to most anti-discrimination laws, including age-based discrimination unless the religious organization has some kind of for-profit component attached to it.

Also, any employer may have the right to discriminate against an employee based on age if the decision involves a bona fide occupational qualification. A bona fide occupational qualification refers to an employment practice that excludes workers based on their age because it’s believed they are unable to safely and efficiently perform the job, and if they were allowed then the employer’s business operations would be undermined. Examples of where a bona fide occupational qualification may apply to include:

• pilots who must retire at age 65;
• physicians who can be forced to retire at age 70; and
• some educators, like tenured faculty members at higher learning institutions.

Other than those two exceptions, there are really no exceptions to age discrimination.

Age discrimination can occur in many different ways. Common examples include the following:

• harassing employees of a certain age in the workplace (e.g., a manager making jokes frequently about an employee’s age);
• consistently passing up older workers for promotions, advancements, training, or other benefits despite the fact that they are equally or more qualified than others who get the same;
• refusing to hire older workers even though they have the same or better qualifications than other younger applicants;
• exhibiting a pattern of firing employees once they reach a certain age or age range;
• rewarding younger and less experienced employees with certain benefits or promotions but not offering the same to older employees with comparable or better work performances; or, among other situations,
• laying off only the employees who were aged 40 or older.

When you have an age discrimination case, you can seek remedies, like:

• backpay, meaning you can recover any lost wages or other benefits
• front pay, meaning you could be compensated wages and benefits that you would have received (if it is not feasible for the employer to hire or reinstate you)
• injunctive relief, meaning a court could make the employer stop whatever discriminatory practice it has in place
• compensatory damages, like future pecuniary and non-pecuniary, losses (e.g., compensation for suffering, mental anguish, inconvenience)
• punitive damages, meaning additional fines due to a discriminatory practice that was undertaken with malice or with reckless indifference
• attorney’s fees, meaning your attorney can recover the reasonable expenses
  The State of California can impose fines, too. So, there’s a lot that can result if you have an age-based discrimination case. To determine if you do, consider some of the following questions.

Do you meet the age requirement to be covered by this specific discrimination law? You must be aged 40 or over.

What type of employee are you? There are a number of different types of “employees” who qualify as potential targets of age discrimination in the workplace. These include the following situations.

• If you are an employee in the traditional sense, meaning the employer agreed to hire you and you work under the direction and control of that employer, then the law applies.
• If you are a temp employee, then the anti-discriminatory laws apply to you as well – the temp worker can technically be an employee of both the temp agency and business he or she is assigned to work on a temporary basis.
• Unpaid interns are now (but were not prior to 2015) protected by anti-discrimination laws based on age.
• Anti-discrimination laws also apply to job applicants including potential job applicants who were deterred from applying based on age discrimination and, therefore, never applied.

Age discrimination laws, however, do not typically apply to

• independent contractors (someone who performs or provides a specific service or project for a specific rate or price)
• individuals employed by their immediate family members (i.e., spouse, parents, or child)
• volunteers (though they are protected against harassment based on age, they are usually not protected against age-based discrimination).

Is the employer subject to California’s anti-discrimination laws on age? Employers who must abide by California’s age-discrimination laws include:

• employers who employ any number of employees on a regular basis even if it’s less than five people (other anti-discriminatory laws apply only to employers employing five or more employees on a regular basis);
• businesses or people who act as an agent of a covered employer – agents are people who act on behalf of the employer and, to be applicable, the employer must have agreed that the agent acts on its behalf; and
• state and local governmental agencies.

Were there any policies or practices in place that had a disparate impact on employees or applicants aged 40 or older? These types of policies may have been adopted without any deliberate motivation to discriminate, but they are unlawful all the same. The elements needed in disparate impact claims based on your age include:

• you were/are an employee or applicant of the employer;
• the employer adopted a policy or practice having a disproportionate adverse impact on people aged 40 or over;
• the same policy or practice has no clear relationship to the requirements of the job; and
• you as the worker or applicant were harmed by the policy – harmed meaning you were denied the job, were not promoted, were terminated, etc. due to the practice or policy.

If you are able to satisfy these elements, then the employer must provide lawful justification for the practice or policy. For example, the policy could be one based on safety or efficiency, thus, it could have a lawful purpose. But, for example, if the policy restricted employers from hiring persons with 25 years of experience or more, it’s hard to come up with a lawful justification for it.

Were you treated disparately? When a person of a certain age is treated differently than younger employees, then you may have been discriminated against again. Think about these questions:

• Were you harassed because of your age?
• Were you paid less than younger employees with the same or fewer qualifications?
• Did performance reviews hint at age-related negative feedback?
• Were you given fewer hours to work compared to other comparable but younger employees?

These are all unlawful treatments. An employer conducting this type of treatment can be held accountable.

Persons who claim age discrimination in the workplace are entitled to pretty much the same remedies as persons claiming other types of employment discrimination. The remedies include:

• back pay (anticipated future damages if the employer cannot reasonably hire or rehire this person)
• front pay (lost wages and benefits the employee would have received)
• injunctive relief (a stop to any discriminatory practices and policies and proactive steps to prevent discrimination)
• reinstatement (a company can be court-ordered to reinstate you in the position you previously held or in a position similar to it)
• hiring (a company can be court-ordered to hire you)
• promotion (a company can be court-ordered to give you the promotion you should have been given)
• liquidated damages (damages to punish an employer who shows malicious intent in its discrimination)
• attorney fees

Notably, victims of age discrimination are not typically eligible for compensatory and/or punitive damages unless the claim is based on another protective class, too.

Many age discrimination complaints related to employment involve termination or discharge. Never sign a release of claims form until you have spoken to an attorney. To sign this form, you are doing away with your ability to get compensation or another remedy for the wrongful termination.

But even if you were not wrongfully terminated based on age but suffered some other type of discrimination – as mentioned above – at work, you have options. You can:

• file a complaint with Human Resources first; or
• file a complaint directly with the DFEH; or
• request a right-to-sue letter from the DFEH; and
• contact an attorney to file a civil action against your employer.

These discrimination cases can be complicated ones, but just because they are doesn’t mean you can’t win your case. You can win it. You can get the compensation and remedies you deserve. Contact Sirmabekian Law Firm, PC to discuss your age discrimination case today.