Elderly workers can fall victim to age discrimination. Luckily, the law makes it unlawful for employers to hire, dismiss, promote or decide on a worker’s payment based on their age. However, the challenge is establishing whether the employer’s actions were driven or inspired by your age and not an honest belief another person was more suitable for the position.

California has the Fair Employment and Housing Act (FEHA) that prohibits age discrimination by employers to employees aged 40 or older. The Act provides procedures for extensive investigations and filing of complaints to establish if you have an age discrimination lawsuit to seek compensation for lost income, emotional suffering, and other damages. This blog highlights how to tell if you have a suit.

California Age Discrimination Statute

In California, if you are 40 years or older, your employer will be contravening FEHA guidelines by denying you a promotion of opportunity because of your age. The Act only relates to employees aged 40 or above, with age including sequential age of whichever person has attained their 40th birthday meant to protect this class of people from opportunity discrimination depending on their abilities. Therefore, even if an employer discriminates against you because you are younger than 40, they won’t be contravening the law because it only protects those defined.

Furthermore, the law makes it illegal for workers’ unions to exclude, expel, or restrict affiliation to an individual because of their age. The same regulations on age discrimination also restrict employment agencies.

Another law protecting employees aged over 40 against age discrimination is the Age Discrimination in Employment Act (ADEA). Both statutes protect the following parties 40 or older from age discrimination:

  • Unpaid interns

  • Job applicants

  • Close family members

  • Independent contractors

  • Volunteers

  • Temporary hires

Forms of Discrimination Because of Age

To build an airtight suit against your employer, you need to tell when age-based discrimination occurs at work. For many employees, you can tell your employer is discriminating against you because of your age if:

  • You are a member of the protected class, and

  • Your employer takes an adverse employment action like salary reduction or termination

  • And you can demonstrate that another worker outside the protected class in your situation was treated more favorably.

For instance, if you received great annual reviews but your employer goes ahead to lay you off and replace you with a youthful individual, you can argue age discrimination. Practices like these by the employer might harm every aspect of your life. Fortunately, state and federal laws protect against any form of discernment.

You can tell if there has been age-based discrimination if, as a job applicant aged at least 40 or a worker above 40, are denied employment benefits because of age. Some of the adverse employment actions your employer can take against you due to age are:

  • Demotion

  • Job termination

  • Wage reduction

  • Denied medical leave

  • Forced to quit or transfer

  • Denied equal pay

  • Starved of a promotion

  • Starved of job reinstatement

  • Denied a work environment without discrimination

  • Refusal to promote

An employer will not walk right into your face and say that you have been fired or demoted because of your age. Discrimination takes various forms, and you can tell it’s happening to you if the employer treats you differently from others because of your age. The signs that can show the actions by your employer are motivated by age discrimination are:

  • Job termination for workers who have been in the organization longer

  • Termination of employees with high wages

  • Forcing older workers, mainly those above 40, to take on particular duties

  • Making jokes or remarking about a worker’s age

  • Unexpected changes in employee performance reviews

  • Cultivating a youthful corporate culture

  • Making older employees retire

These actions are further discussed below.

Firing Workers With High Salaries

The longer you work for a company, the higher your salary is than younger employees. So, when your employer lays you and other employees with high salaries off the job claiming that they are cutting recurrent expenditure, it might be a sign of age discrimination, mainly if those affected are elderly workers. Employers are aware that the individuals with the highest pay in the company are the older ones and therefore differentiate them from others through salaries.

Forced Retirement for the Elderly Workers

California’s FEHA discourages retirement schemes with a compulsory age bracket. Therefore, you will have a claim to seek compensation if your employer forces you and other elderly workers into retirement. Still, there are exceptions to these statutes. These are:

  • If you are a physician above 70 working for a professional health organization that arranges for mandatory retirement.

  • If you are 65 or older and have held a legal, managerial, or administrative post for the last two years, and are entitled to immediate, nonforfeitable retirement benefits from the company.

Recruitment of Youthful Employees

Employers understand that the law prohibits denying applicants above 40 employment opportunities. Sadly, the same employers put age requirements in their recruitment materials or target high schools and universities for recruitment, claiming they want to foster a youthful corporate environment. It’s not illegal to conduct recruitment exercises in colleges, high schools, and universities or specify job applicants' age. The problem is using recruitment or screening materials that demonstrate age-based employment discrimination. If your employer does this, it means they are using these recruitment programs to escape age discrimination statutes.

It’s worth understanding that an employer can request your age during a job application without violating the law. However, it’s illegal to use this information provided during the application to deny applicants the job as they are 40 or older.

Making Jokes or Comments of a Worker’s Age

If you are among the oldest in your organization, your employer or colleagues may joke about your age. These comments may appear as jokes, but they might be sensitive and adversely affect your job performance. If the employers do nothing about these comments, it means they are allowing workplace discrimination because of age, and you could report them or file a suit for the violation of FEHA.

Other actions by employers like hiring practices, working conditions, and organization policies might also be discriminatory, although not age-based. However, if these practices affect older workers adversely, they may be considered age discrimination.

From 2020, hairstyles in the workplace are protected under SB 188, meaning employers cannot ban employees from dying their hair gray or having gray hair because this will be discriminatory against the older employees, whose majority are gray-haired.

Filing a Complaint with the DFEH or EEOC

If you have noticed signs of age discrimination, you can report to the Equal Employment Opportunity Commission (EEOC), the body that investigates these matters and enforces federal laws, including ADEA. Age discriminatory cases are not taken to court before exhausting administrative options. The EEOC will file a charge if you have strong facts to support your claims, making it necessary to know if you have a case or not. If you present weak evidence, the agency will not file charges. Instead, they will return the file for further investigations. Once investigations are over, they discuss the charges with you and your employer to find a solution.

When you and the employer fail to arrive at a settlement, the EEOC will intervene through mediation. If this, too, is unsuccessful, they will send the charges back for investigation.

The charge will be thrown out where there is no sign of discrimination. However, if there is evidence of discrimination and the agency can resolve the matter, both parties will be involved to remedy the situation. If there is no conciliation, the agency will file a charge in the federal court on your behalf. Also, if they cannot resolve the charge, they will need to file a suit.

In California, it will be advantageous to report your case to the Department of Fair Employment and Housing (DFEH) and the court. If you have a claim, you have up to thirty-six months to report the case to DFEH and file a Pre-Complaint Inquiry if the employer’s discriminatory actions were willful. When the employer discriminates against you because of age unwillingly, the statute of limitation is two years. You don’t have to wait until the last minute to file a complaint because you can do it online, over the phone, or by filling out forms on the DFEH site. The purpose of the inquiry is to begin an intake meeting with DFEH to establish if your claim is worth investigating.

The investigator assigned your case will reach out within sixty days to review the inquiry and determine if your complaint will be accepted, dismissed, or you will initiate legal action against the employer in court. After accepting your complaint, a copy of the file will go to your employer and EEOC.

When the employer replies to the inquiry, the DFEH becomes a dispute resolution expert to help with negotiations and remedy development. If negotiations are futile, the DFEH will be forced to investigate the matter to determine the existence of a breach of California statutes by the employer. When there is evidence of age discrimination, the matter will go before the DFEH’s legal division, where the parties involved undergo mediation and create an amicable solution.

However, if there was no violation on the employer's side, the case will be closed, and you will be forced to move to court. Also, when the legal division cannot settle the matter, you have a right to file a lawsuit.

Note that you don’t need to go through the DFEH to claim compensation if you have an attorney by your side. Your employment law attorney can acquire a right to sue notice and file the case directly in a superior court. Your employer will be served with the notice and will respond with an official answer. If you don’t resolve the case before it reaches trial, the court will be left to give a verdict.

Damages Available in your Age Discrimination Lawsuit

The form of age discrimination you have undergone at your workplace will determine the damages to be awarded if you prove a breach of the law by your employer. The solutions available in these claims are meant to reimburse you and return you to the original position before the breach. The damages available include:

  • Pain and suffering

  • Pension benefits

  • Bonus payments

  • Increased income after a job promotion

  • Higher wages from an increment

  • Emotional distress

  • Lost wages

The above damages can be financial, punitive, or equitable remedies.

If the age discrimination by the employer was deliberate, you are entitled to punitive or liquidated damages. The purpose of these damages is not reimbursement. Instead, they penalize the employer and deter others from engaging in the same conduct against their workers.

When you are a victim of unfair termination because of age discrimination, the court in its ruling can instruct the employer to reinstate you immediately. Additionally, it may order equitable remedies, including pay raise or a promotion. However, you should be less willing to opt for these remedies as it means returning to an unfriendly work environment.

If the court’s verdict is in your favor, the employer will compensate you for the damages. Additionally, they will pay the legal subscriptions and other court expenses incurred in the lawsuit.

Employer Retaliation in Age Discrimination Cases

When you file a complaint against the employer for age discrimination, they might not take it lightly, but the law prohibits them from retaliating. You are protected against employer retaliation if:

  • You are against workplace harassment

  • Fight age discrimination touching other workers

  • Report an incident of age discrimination

  • File a discrimination suit

  • Help the DFEH with investigations

If your employer wrongfully terminates you for any of the above actions, you can file a wrongful termination suit or a grievance with DFEH.

Find an Experienced Employment Law Attorney Near Me

As an employee or job applicant in California, you have a right to be free from discrimination based on age. If you believe your employer has breached these rights under state and federal statutes, you should reach out to a workers’ rights attorney. At Stop Unpaid Wages, we can answer your questions and offer legal guidance regarding age discrimination laws. Call us today at 424-781-8411 to help you regain employment benefits from your former or existing employer.