Older people are often considered to be more experienced and more matured. Sentiments like this are especially true since they have simply lived more, seen more, and learned more from their time. However, when it comes to workplace culture, older people tend to be more susceptible to discrimination. Despite having more experience, companies often look to younger workers over older ones. Especially when companies are becoming more and more fast-paced, older employees tend to experience more discrimination.
Even though age discrimination applies to all age groups, older workers tend to experience it more. Despite being more experienced and knowledgeable, employers may choose to discriminate against older employees if they believe they will be a liability or because they may be unable to keep up. This is unfair. Age does not really determine one’s ability to do their job; thus, it should not be a factor that employers make their judgments with when working with them.
At Stop Unpaid Wages, we believe that older employees occupy a vulnerable position in the workforce. They should not be taken advantage of by employers or discriminated against. This causes financial hardship and emotional strife to anyone affected. If you believe that you are being discriminated against based upon your age, contact our attorneys. We aim to provide Californians with quality legal assistance in cases dealing with workplace discrimination. With our experience with these types of cases, Stop Unpaid Wages may be able to help you with your complaint.
What is Age Discrimination in the Workplace?
In general, discrimination means that an individual, such as an employee in a workplace or an applicant, is treated less favorably than other employees due to certain attributes that they may have. All forms of discrimination are strictly prohibited under the law.
Age discrimination is a specific form of discrimination in which an employer may treat an employee less favorably due to their age. In the context of the workplace, age discrimination may occur when an employer:
- Refuses to hire,
- Refuses to promote,
- Uses a policy that negatively affects an employee,
- Refuses to accommodate, or
- Allows an employee to be harassed based upon their age.
This list is limited in scope but provides a general idea of what age discrimination may look like in the workplace. Discrimination may also occur with manner related to an employee’s salary, benefits, and denying time off for things like doctor appointments. Simply, it may be considered age discrimination if an employee, or employees, of a certain age group, are not given the equal treatment that any other employee would receive.
However, since age may be determined by an employer just by sight, an employer may not just state that a reason for an employee’s treatment was their age. Usually, age discrimination occurs when employees who have been with a company longer are fired, higher-salary employees are fired, older workers are made to do certain duties, insensitive comments are made about an employee’s age, a company promotes younger employees more often, or if older employees are forced into retirement.
Examples of Age Discrimination:
- An employer is looking for new employees. She goes through all of the applications that were sent in for the position and tosses out the applications of individuals over the age of 40.
- A company decides to let go of its higher salary employees in order to save money. However, this disproportionately affects employees of older age since the longer an employee works at the company, the more they make.
There are situations which may seem like age discrimination but are not technically considered to be so. Sometimes, employers may visit high schools or colleges to recruit for employees. Obviously, this would mean that an employer is looking for younger workers; however, this is a legal practice. It is only when a company decides to recruit new employees through these channels that age discrimination would arise. Also, an employer can ask an employer for their age and birth date on an application.
Even though age discrimination may be difficult to identify at times, you may be able to determine if you are being discriminated against by determining how people in your age group fare at your workplace. If you feel that you have been, or are, being discriminated against because of your age, you may file a complaint and seek the help of a lawyer to build a case.
Age Discrimination Laws
There are multiple laws regarding age discrimination. On both the federal and state level, there are specific laws meant to protect employees from all forms of workplace discrimination, this including age discrimination. Related laws include the Age Discrimination in Employment Act and California’s Fair Employment and Housing Act. These laws provide guidelines that help to define exactly what age discrimination is and how it may be treated in your workplace or in the court of law.
The Age Discrimination in Employment Act describes federal laws that specifically deal with age discrimination in the workplace. The act prohibits any form of discrimination on the basis of an individual’s age. As stated within the code itself, this law is meant to promote the practice of deciding employment based on ability rather than age.
The act itself makes it unlawful for an employer to:
- Refuse to hire, discharge, or discriminate with respect to compensation, terms, conditions, or privileges on the basis of an individual’s age,
- Segregate, limit, or classify employees in a manner that would affect employment opportunities on the basis of an individual’s age, or
- Reduce wages on the basis of an individual’s age.
This rules also apply to employment agencies and labor organizations under this law. Besides this, the act also protects benefit plans for employees. Employers may not reduce an employee’s benefits due to their age.
In California, the Fair Employment and Housing Act is similar to the federal Age Discrimination in Employment Act. However, this act specifically prohibits employers from discriminating against employees, or applicants, aged 40 and older. This act applies to both public and private employers, as well as labor organizations and employment agencies. Along with other forms of discrimination, this act is meant to protect older employees in the working world. It gives them a fair chance like anyone else who is working or is looking for work in California. Also, under FEHA, retirement plans are prohibited from making a mandatory retirement age. However, they made be made in some exceptions.
Also, in California, discrimination laws prohibit certain types of policies that may unfairly impact employees over the age of 40 and that are unrelated to the job’s actual requirements. They may still be considered to be age discrimination even without a clear intention to discriminate. For example, a company may choose to not hire employees if they have more than a certain amount of experience. Because older people may have more experience, this will affect how they are received. Even though there is no clear purpose to commit age discrimination, the policy may be considered as such because it unfairly affects a certain group of people.
Both of these acts are meant to provide protection to more vulnerable employees in the workplace. They were written to ensure that employees in certain age groups are treated equally to employees in other age groups. Again, these acts push the notion that it should be about ability and not an age when it comes to employment.
What Responsibilities Does an Employer Have?
As an employer in California, there are certain rules and law that must be followed in the workplace. In cases of discrimination, there are important duties that an employer must undertake. First of all, in California, anti-discrimination laws apply to employers with five (5) or more employees, individuals who are agents for the employer, and state and governmental entities. An agent, here, means any individual that acts on the behalf of the employer, and they are given specific powers and responsibilities within the business.
Discrimination cases often do not apply to supervisors or co-workers, and a lawsuit may not be filed against them. If a co-worker or supervisor does discriminate against another employee based on their age, then it is the employer who may be liable. After all, it is the employer’s responsibility to ensure that such incidents do not occur or are resolved. The only time a supervisor or co-worker may be sued is in cases of harassment. This is different from age discrimination, but it can be filed alongside a discrimination claim depending on the circumstances of the case.
Related Workplace Problems
Age discrimination can lead to more unlawful action from an employer. While discrimination may be a motivation behind an employer’s actions, the actual actions themselves may lead to more complaints and other types of lawsuits. Age discrimination may lead to lawsuits revolving around wrongful termination, employer retaliation, or harassment.
It is illegal for an employer to retaliate against one of their employees for filing a complaint about age, or any form of, discrimination in California. This means that an employer cannot fire the employee that filed the complaint about doing so. Also, the employer may not retaliate in any form, such as reduce pay or benefits, demote, and/or create an environment of harassment towards the employee.
In the context of age discrimination, the Fair Employment and Housing Act protects workers who have been retaliated against for reporting age discrimination, assisting in investigations, filing a claim, and/or bringing up a lawsuit. If an employer does act out in retaliation against one of his or her employees for one of these actions, then that employee may file an additional complaint about employer retaliation. This could potentially lead to another lawsuit that can be added on top of the original case.
As stated above, age discrimination may lead to an employee getting fire purely based on their age. This is wrongful termination as well as age discrimination. Wrongful termination indicates that an employee has been fired in a way that violates state and federal laws—this includes any kind of discrimination. Simply, it means the unlawful firing of an employee. However, wrongful termination does not apply to situations in which an employee feels that they have been fired for no real reason at all. An employer does have a right to fire at will as long as it is lawful.
Age-based harassment may be considered a form of age discrimination. It is illegal to harass an employee, or employees, based upon their age. In most cases, in order for actions to be considered an unlawful form of harassment, it needs to have been quite severe or frequent. If any of these factors are the case, then it is enough to create what is considered to be a hostile or offensive work environment for the victim. Sometimes, this may even lead to situations that may be the basis for a wrongful termination lawsuit as well.
Harassment is a special type of case in that the victim employee does not need to have been damaged in any form or harm in any way. This is because harassment usually occurs verbally, or through other forms of communication. However, it is vital to know that harassment law does not prohibit behaviors such as teasing and/or single incidents that are minor even though they may be understood as age discrimination (harassment needs to be severe or frequent). If the legal definition of harassment does apply to your case, then that is enough to file a claim against an employer or co-worker.
Exceptions to Age Discrimination
There are scenarios in which exceptions can be made to employers who have discriminated against one of their employees due to their age.
Bona Fide Occupational Qualifications
Any employer may discriminate against one of their employees over the age of forty if it is on the basis of a bona fide occupational qualification, or BFOQ. Specifically, this is the practice of excluding a certain group of individuals based on their age because they are unable to properly and safely perform the job they are tasked to do, and by leaving them where they are would present problems to the business.
However, in the court of law, this exception is rarely implicated in age discrimination cases. All employers must show proof of legitimacy behind the use of a BFOQ.
Certain institutions of higher learning, like universities, have tenured faculty members that may be forced to retire. However, for these cases, the retirement policies must allow for re-employment to those employees who were forced to retire on a yearly basis.
For physicians working in a professional medical corporation and who are 70 years old or older can be forced to retire. However, the medical corporation must provide for compulsory retirement in their bylaws and articles.
Private employers may impose mandatory retirement ages for certain executives or high-level policymaking employees. These are sometimes called good-faith limitations. Under this exception, these employees must be entitled to annual retirement benefits of at least $27,000. Also, the employees need to have been at 65 years old at the time of the retirement.
Another lawful excuse is a bona fide seniority system made in good faith. This is a system that recognizes job tenure and allocates employment rights, benefits, and wages on that basis. However, to not be considered age discrimination, there can be absolutely no intent to discriminate. Under this system, employees cannot be required or forced into retiring based on their ages.
Filing an Age Discrimination Complaint
If you have a reasonable belief that you are being discriminated against because of your age, you may file a complaint against your employer. Since age discrimination violated both state and federal laws, a complaint may be filed with a couple different departments depending on the circumstances of the incident. The Equal Employment Opportunity Commission, or EEOC, helps to enforce and regulate the federal age discrimination laws—this includes the Age Discrimination in Employment Act. You may take a form of age discrimination complaint here since the act covers all age groups. However, it is vital to note that with the EEOC, age discrimination type of cases usually require extensive administrative remedies before a lawsuit can even be filed against an employer.
Age discrimination may also be filed with California’s Department of Fair Employment and Housing. Since the act itself is targeted towards employees 40 years and older, this should be where one takes their complaint if this is the case. Also, this state policy is broader and allows for more compensation to the affected victim. Note: your complaint must be filed within one year from the alleged incident in order to be accepted.
With the DFEH, an employee may either obtain the right to sue their employee as soon as possible, or an investigation will be made into the complaint to see if the case can move further. For an immediate right to sue, you usually have to notify the department and ask for a letter. Otherwise, most cases are taken care through the department’s investigation.
The investigation process for age discrimination may take up to 60 days. It is during this period that an investigator will go through the details of the case and determine whether the claim is valid or not. If the claim is determined to not be valid, the case will be dropped; however, the victim may receive the right immediately sue their employer. If your claim is accepted, the department’s legal division may require both you and your employer to attend a mediation service to find a resolution. In this way, both of you may determine the outcome of the case and how it will be settled. If not, the case may be taken to court as a lawsuit. From there, a judge will help determine the outcome and the damages.
Possible Damages from a Lawsuit
Once your case has been taken to court, the decision may include a variety of remedies that may be received. For age discrimination cases, the possible remedies are meant to make up for any damages received during or after the incident. Remedies may be made to make up for losses stemming from:
- Back wages and pay,
- A higher salary due to promotion,
- A higher salary due to a raise,
- Any benefits,
- Any sort of suffering, and/or
- Any legal fees.
An employer may be made to pay for punitive fees. Usually, this happens if an employer had intentionally sought to discriminate against his/her employees based on their age, or if their actions were harsh and excessive. The employee may also receive liquidated damages in these cases.
A court may also order an employer to rehire an employee if he or she was terminated based upon their age. Similarly, a court may order the employer to promote the employee, raise their salary, or anything else to equal any type of damages incurred because of the incident.
Finding an Age Discrimination Lawyer Near Me
As a worker, you should always be treated equally and fairly—no matter how old you may be. One’s abilities and knowledge should be the sole test for determining whether or not a potential employee is fit for the job. Unfortunately, other factors may influence how an employer may decide who to hire. Age discrimination and various other forms of discrimination in the workplace can greatly impact one’s livelihood. Even if a potential employee is more than qualified, an employer who often discriminates based upon an individual’s age may lose out on valuable talent.
Age discrimination is taken seriously in California. Not only can it affect an employee’s life in a major way, but it can lead to various penalties for the employer.
For any further questions regarding age discrimination, call 424-781-8411 to reach our offices today. By contacting us as soon as you can, we can review and discuss your case to determine what the next steps should be. As lawyers who deal with work discrimination cases every day, you can be sure that we will fight to make sure that your rights as a hard worker in California are protected.