It is no secret that competition is fierce in the business world. Employers know that cutting costs and improving efficiency can help maximize profit. As the United States workforce ages, and Baby Boomers approach retirement age, many employers realize that their older employees are not only paid higher wages, but are not as productive as they used to be. This creates a motivation to replace them with younger, less expensive employees.
As time working for our employers goes on, our vacation entitlement and wages tend to increase, which makes us less cost effective, particularly if we become less productive, or less technologically savvy, due to aging. These trends tend to disproportionately affect older people. When an employer decides to get rid of its older workers, they usually are not willing to disclose the real reason why they want to terminate the older employee’s jobs. This is because age discrimination is illegal.
Age discrimination is an employer’s unfair treatment of an employee based on their age, primarily those 40 years old and older.
Which employees are protected from age discrimination?
Any current or former employee, over the age of 40, who feels their age was part of the reason that they suffered an adverse employment action, can sue for age discrimination.
As long as you are over 40, age is a protected class, and employers cannot legally discriminate against you based on age. Age discrimination only applies to employees who are over 40 years of age. It doesn’t matter what your age was when you were hired. The important thing to keep in mind is that we have to show that you were treated differently than younger workers, or that you were harassed, based on your age.
In age discrimination cases where employees were told that they are going too slow or that they are taking too many days off, these are examples of facts that we can use to show that age was a factor in the termination decision. Often, older employees make more than their younger counterparts because they’ve worked there longer, and are selected for layoff merely because of their higher hourly rate. Those are other facts that we can use to show that your age was a factor in the termination decision.
Our carefully chosen age discrimination cases have repeatedly proven to be extremely valuable, often resolving in large settlements.
Proving age discrimination
Proving discrimination on the basis of age is a challenging undertaking which benefits greatly from consultation with an employment lawyer.
Most employers will claim some other seemingly legitimate, non-discriminatory reason for your termination. They often try to skirt age discrimination laws by claiming that an older employee’s work performance is poor, or by saying that the position they used to perform has been eliminated.
However, there are a number of ways to show that age that was a factor in your termination. Age only needs to be shown to be more than a trivial part of the employer’s reason. With certain exceptions, when you show that an employer made an employment decision against you based in part on your age, you are entitled to damages based on the amount of lost wages and emotional distress that you have and will suffer. In some cases, even punitive damages may be ordered to punish the employer for their illegal actions.
It is important for us to show evidence that the rationale claimed by the employer is false. Often, this includes showing that you trained your replacement to do your job, or that your annual performance evaluations were as good as they have always been.
Additionally, testimony that your supervisor asked you when you planned to retire, or criticized you for the speed of your work can demonstrate that your age was a substantial factor in the decision to terminate your employment.
Don’t be misled here by the words “substantial factor.” This just means that your age was more than a trivial part of the reason for your termination. It does not have to be the only reason, just part of the reason.
The last requirement to show age discrimination is that you were replaced by a substantially younger person. Sometimes this means waiting several weeks or months to figure out who your replacement was, and approximately how old they are. Substantially younger means at least 10 years, and preferably 15 years younger.
In other cases, employers are a bit more shrewd. Sometimes employers hire your eventual replacement first into another position. Later, following your termination, that younger replacement keeps his alternate title, but assumes the work previously performed by you. Look for signs of this as you see new employees hired into positions which seem unnecessary.
The kind of protections you will receive are fantastic when you establish liability. However, establishing liability for age discrimination is difficult. Employers will try to hide what they’ve done because the alternative of paying you damages and paying your attorney’s fees is daunting. Employers will lie and, interestingly, lying is not illegal.
The way we prove age discrimination is by showing that you were treated differently from similarly situated younger workers, employees who make less money by doing the same job, or you were referred to as old, or that you were treated differently by being asked questions about your age or asked when you intend to retire.
Also, most older employees tend to be long-term employees. They are often familiar with the names of other older previously fired workers who may have suffered the same age-based discrimination. Testimony from these similarly situated older, long-term former employees can help establish liability against your former employer for age discrimination.
Laws against age discrimination
Employees over 40 are protected from age discrimination through the California Fair Employment and Housing Act (FEHA) of 1980. The FEHA is enforced by the California Department of Fair Employment and Housing (DFEH).
You may be aware of the federal Age Discrimination Act of 1975, which disallows age discrimination in activities and programs which receive federal aid. The Age Discrimination Act is enforced by the Civil Rights Center. However, in the context of employment, employees who work for a federal employer are protected against age discrimination via the Age Discrimination In Employment Act (ADEA), which is a federal age discrimination law.
The ADEA protects employees aged 40 or older from age discrimination in the workplace if their employers have at least 20 employees. The ADEA prohibits these employers from terminating their employees because of their age, forcing older workers into early retirement and subjecting them to age discrimination in the workplace.
The Older Workers Benefit Protection Act (OWBPA) prohibits employers from reducing or denying benefits for older employees. In some contexts, though, benefits can be reduced, as long as the cost of benefits for workers of all ages remains the same.
At the federal level, the Equal Employment Opportunity Commission (EEOC) enforces the ADEA. In order to bring an ADEA claim before the EEOC, it is critical to file in a timely manner, before the relevant deadline. In this case, your claim must be filed within 300 calendar days after the employer’s violation, if you are in a state with a Fair Employment Practices Act (FEPA). California is one of these states, with the FEHA prohibiting businesses and unions from discrimination against job applicants or employees based on a number of protected classes, including age (specifically, workers 40 years of age and older).
However, unless you work for a federal employer like the post office, an employee who has been subjected to age discrimination can sue under the California Fair Employment and Housing Act (FEHA). This way, your age discrimination lawsuit can most likely be heard in a California state court. It’s almost always better for an employee to be in California state court (Los Angeles Superior Court) rather than federal court.
Age discrimination is unlawful in any phase of the employment process, including the following:
- Job postings
- Job descriptions
- Job assignments
- Merit increases
- Performance management
- Disciplinary actions
Employers may not make assumptions or terminate workers based on age. For example, that older employees do not understand how to use the latest technology or won’t remain at the company for long because they will soon retire, or that they do not require as much time off as younger staff who have just started a family. All of these are examples of age discrimination in the workplace.
Age discrimination in hiring
Employers may not only seek to hire younger workers and may not rule out those applicants whose resumes show that they are slightly older, unless there is a valid reason for the business to do so. Such behavior when recruiting employees falls under age discrimination in the workplace.
Employers are not prohibited from asking an applicant for his/her age or date of birth in a job interview. However, this is not a common question, therefore, if it does happen, document the incident if you believe you have been a victim of age discrimination during the hiring process.
The ADEA prohibits employment discrimination based on age for workers aged 40 and older. However, that has not stopped age discrimination in the workplace from taking place in Los Angeles. It is not illegal for an employer to request an applicant’s age, but it is definitely illegal for the employer to use such information when selecting an applicant for the job.
Should you request a professional and knowledgable age discrimination attorney in Los Angeles, look no further than contacting Wrongful Termination Law Group to successfully handle your case.
The ADEA forbids the harassment of older employees at work. This type of age discrimination in the workplace can take the form of bullying, jokes or unnecessary comments about an employee’s age. Several instances of age discrimination in the workplace can occur when an employer refers to an employee using needless names such as “old-timer”, “gramps”, or even suggesting that the employee has dementia.
Age discrimination attorneys have identified that any age-related comments by a manager or supervisor do fall under age discrimination in the workplace. With that in mind, do note that frequent comments or more serious/physical forms of harassment are more likely to be illegal.
Age discrimination in benefits
Any form of adverse action that affects older workers more than younger employees, or certain policies that provide educational benefits or training only to younger staff, falls under the umbrella of age discrimination in the workplace.
Los Angeles employment laws ensure that employers offer older employees benefits that are equal to those provided to younger workers, or that are of the same financial value. For any benefits that are more expensive (health benefits or life insurance), an employer may be allowed to offer alternative benefits to older workers, if the employer spends equal amounts on older and younger employees.
To take advantage of this situation, an employer’s benefit plan must adhere to certain employment requisites. If you believe your employer’s benefit plan is unfair or discriminated against older employees, please consider contacting our age discrimination lawyers.
Should I file a lawsuit if the employer has remedied the situation?
Whether you should still pursue an age case depends on whether you’ve suffered damages, and how great those damages are. If you have been restored to your previous position with no loss in pay, and this happened quickly enough that you did not have any opportunity to suffer emotional distress, perhaps no lawsuit is necessary. On the other hand, if it took several months or longer to be restored to your position, a lawsuit may still be worthwhile.
What to do if you’re a victim
Age discrimination is becoming much more prevalent because our nation is aging, and the Baby Boomer generation is getting closer to retirement age. Employers are finding it much more cost effective to terminate their older employees for false reasons, so that they can replace them with younger workers who earn less, have less vacation time, and may be more productive. This trend is likely to last a decade or more as the Baby Boomers continue to grow older in the workplace.
If you feel that you’ve been discriminated against, contact an employment lawyer who can evaluate your case and recommend how you should proceed. Much depends on whether you have already been fired or not.
If you have not yet been fired, but feel like you are in the process of being fired due to your age, the best thing to do is to complain in writing. Use your own personal email account and use the words “age discrimination” in your complaint to Human Resources or to the owner of the company.
Explain to your employer why you feel that you are being treated differently due to your age and what evidence you have. Do not complain without including specific examples of things that were said or done that cause you to believe that your age was a factor. The next thing you should do is to contact an attorney to evaluate your case.
We represent employees.
It is against the law for employers (under the Age Discrimination in Employment Act) to terminate, refuse to hire or discriminate against employees or job applicants based on their age. Unfortunately, many workers in Los Angeles are victims of age discrimination in the workplace, whether it is disguised as employment layoffs, cut offs or any other violations which create a hostile work environment.
Wrongful Termination Law Group is a renowned employment law firm in Los Angeles with a team which has successfully represented many Los Angeles and Orange County employees against employers who have wrongfully and illegally treated the employee due to his or her age.
Our experienced age discrimination lawyers understand how to recognize the routes that various employers in Los Angeles tend to engage in. We represent clients working in multiple industries, and understand how to support older workers in a variety of work contexts in filing age discrimination claims with the appropriate agencies, and throughout the process of filing and pursuing a discrimination lawsuit.
If you believe you have been a victim of age discrimination in the workplace, our knowledgeable age discrimination lawyers will explain your legal options and help protect your employee rights against any further age discrimination from your employer. Contact our offices in Los Angeles to speak with an age discrimination attorney about your case and get the protection you need to avoid any future harassment at work.