California Age Discrimination
As the nation’s baby boomers approach their senior years, the problem of age discrimination is a matter of concern for increasing numbers of employees. Employees in executive positions worry that their employer will want “fresh blood.” Sales employees worry that their employer will want to create a more “youthful image.” Employees who perform physical tasks worry that employers will see younger workers as more productive, whether or not older employees are still capable of doing the work.
Age discrimination results from stereotypes. Older employees are viewed as less energetic and less alert than younger employees. Older employees are branded as forgetful or incapable of learning new things. Yet employment decisions should be based on an employee’s performance, not on stereotypes.
The federal Age Discrimination in Employment Act (ADEA) and California’s Fair Housing and Employment Act (FHEA) both protect against age discrimination. An employment lawyer at KKG Law can advise employees who believe they may have been victimized by age discrimination.
Employees Protected by Age Discrimination Laws
The ADEA and FEHA both protect employees who are at least 40 years old. The ADEA applies to businesses that have at least 20 employees. However, FEHA generally applies to California employers who have at least 5 employees, including employees who are on leave and out-of-state employees. Many small businesses in California are therefore covered by FEHA even if the ADEA does not apply.
Independent contracts are not covered by the ADEA or FEHA. However, many employers misclassify employees as independent contractors. You can ask an employment discrimination lawyer at KKG Law whether you are entitled to the protection of age discrimination laws despite being paid as an independent contractor.
Employees are protected from age discrimination both in hiring and after they begin their employment. While it is not expressly unlawful to ask a job applicant for a date of birth, employers who do so may be creating evidence of an intent to discriminate on the basis of age.
Under FEHA, age discrimination occurs when age (over 40) is a substantial motivating reason for a decision not to hire a job applicant or to:
- Terminate employment
- Require an employee to retire
- Demote or fail to promote an employee
- Reduce pay or fail to give a raise
- Reduce hours
- Take any other action that adversely affects compensation, terms, privileges, or conditions of employment.
Age can be considered when making employment decisions only if it is legitimate to treat older employees less favorably than younger ones. The law refers to that exception as a “bona fide occupational qualification.” For example, public safety concerns might justify imposing a mandatory retirement age on pilots.
The Supreme Court has made clear that age should rarely be considered a bona fide occupational qualification. Employers are instead expected to make individualized decisions about employees based on their job performance.
Employers usually defend age discrimination cases by asserting that they took action against an employee whose job performance was poor. Proving that the employee’s job performance was at least as good as the performance of younger employees is often the key to winning age discrimination cases.
Harassment and Constructive Discharge
Harassing an employee because of age violates the law if the harassment is so severe or pervasive that it creates a hostile work environment.
Age harassment by a boss, corporate officer, manager, or supervisor with the authority to affect the terms and conditions of employment will usually violate the ADEA and FEHA if it creates a hostile work environment.
Age harassment by co-workers will violate the law if it creates a hostile work environment and if the employer knew or should have known about it. An employer’s failure to enact a policy that prohibits harassment and to create a mechanism for reporting harassment is often strong evidence that the employer should have known about a hostile work environment.
Taunts or offensive comments directed at an employee’s age are examples of harassment. Occasional teasing will probably not create a hostile work environment, but frequent and repeated teasing might. An age discrimination lawyer at KKG Law can help an employee decide what to do after experiencing age-related harassment at work.
In some cases, harassment becomes so intolerable than an employee quits. If most reasonable people in that same situation would have responded by quitting, the law regards the decision to quit as a constructive discharge. In other words, the law treats the employee as if the employer had fired the employee because of his or her age.
Waiver of Rights
When a company wants to fire an older worker, it often asks the employee to waive (or give up) the right to make a claim for age discrimination. It will typically offer a severance bonus in exchange for signing a release of legal claims related to age discrimination.
The ADEA requires certain information to be given to protected employees before they release their age discrimination claims. The ADEA also requires employers to give employees 21 days to consider the offer before accepting or rejecting it. Employees must also be given 7 days to revoke an offer that they have accepted.
Employees can use that time to seek legal advice about the advantages and disadvantages of accepting the offer. If there is evidence of age discrimination, it may be possible to negotiate a better offer before the 21 days expires. It may also be better to pursue an age discrimination claim than to give up that right in exchange for a small severance benefit. Those choices should only be made after consulting with an experienced employment discrimination lawyer.
Federal and California laws prohibit employers from retaliating against employees who complain, or file legal claims, about employment discrimination or harassment. Conduct that is defined as retaliatory is broader than the discriminatory acts discussed above. Our retaliation page explains retaliation and its remedies in more detail.
Helping Victims of Employment Discrimination and Harassment
Employees who have experienced employment discrimination, harassment, or retaliation related to age may be entitled to:
- Back pay
- Reinstatement to a position or front pay
- Liquidated damages (a penalty that doubles lost pay) in ADEA cases
- Compensation for emotional distress in FEHA cases
- Punitive damages in FEHA cases
- Court orders prohibiting future harassment or discrimination
An employment lawyer at KKG Law can help victims of age discrimination, harassment, or retaliation. We represent current and former employees in Oakland, San Jose, Fairfield, and all other Bay Area communities. Contact us at 510-721-3477.