Even with laws meant to help older workers, age discrimination in employment is still a significant concern. Many seasoned professionals experience bias by being denied promotions, missing out on opportunities, or being let go simply for being older. This discrimination not only affects their careers but also causes them financial and emotional problems. Experience and expertise accumulated over several years should be considered beneficial, not impediments.

If you believe you have experienced age discrimination and your rights were violated, you should seek help from a California lawyer. Stop Unpaid Wages provides skilled and experienced help for people facing age discrimination. We will support your claims and work hard to achieve justice for you. You can contact us to share your situation and see what legal options are available.

Review the information below to understand what age discrimination entails.

What is Age Discrimination?

Age discrimination happens when a person is mistreated because of their age. California’s main law that prevents age discrimination is the Fair Employment and Housing Act (FEHA). All employees working for private businesses with at least five employees and those in state and local governments are covered by FEHA, which protects them regarding hiring, firing, promotions, compensation, job duties, and employment terms. FEHA aims to see that employment choices are made based on skill and effort and not on prejudice or ageist opinions.

The federal Age Discrimination in Employment Act (ADEA), passed in 1967, is another law that protects workers 40 and older. While FEHA applies to employers with five or more people working, the ADEA is in place for employers with 20 or more workers. Thus, if a business employs 20 or more individuals, they are subject to federal and state age discrimination laws.

Like FEHA, ADEA ensures older workers are not treated differently because of their age, from the job application to the last day of work. It helps make the workplace equal, allowing skill and experience to be the focus rather than age. Both laws prevent older workers from being unfairly excluded from employment opportunities and ensure their careers and livelihoods are secure.

Let us look at each law in detail:

Fair Employment and Housing Act (FEHA)

In California, the Fair Employment and Housing Act (FEHA) is the main law against discrimination, including age discrimination. It protects more employees than the federal law, as it applies to any workplace with five or more staff members. Therefore, many workplaces throughout the state, big or small, have to prevent age discrimination from happening.

It is illegal under FEHA to treat someone 40 or older differently in any aspect of their job, like recruitment, hiring, promotions, firing, salaries, or employment terms.

Formerly called the Department of Fair Employment and Housing (DFEH), the California Civil Rights Department (CRD) now oversees the enforcement of FEHA. It investigates complaints, tries to solve disputes, and, when required, brings legal action against employers who do not comply with these policies. It seeks to provide an important avenue for individuals to seek help.

Age Discrimination in Employment Act (ADEA)

Although FEHA provides several protections at the state level, the Age Discrimination in Employment Act (ADEA) is the federal law that deals with age discrimination. Employers with 20 or more people must follow the ADEA, which forbids discrimination against people 40 and over.

Even though FEHA and ADEA have some common points, ADEA gives employees a federal path for help and sometimes requires different procedures or outcomes. The ADEA is enforced by the U.S. Equal Employment Opportunity Commission (EEOC). Both the CRD and EEOC offer valuable resources, guidance, and complaint mechanisms for filing complaints to people who feel they have suffered age discrimination.

The Older Workers Benefit Protection Act (OWBPA)

Apart from basic anti-discrimination policies, the Older Workers Benefit Protection Act (OWBPA) is an important federal change to the ADEA that deals specifically with waiving rights under the ADEA, mainly in the context of severance agreements. The OWBPA outlines an employer's steps to get a valid waiver of an employee’s right to pursue an ADEA case.

For a waiver to be valid, it must:

  • Be clear
  • Specifically refer to the ADEA rights
  • Advise the individual to consult with a lawyer
  • Allow adequate time, 21 days for an individual and 45 days for a group, to consider the agreement
  • Provide seven days to change their mind or revoke the agreement after signing

This act ensures that employers do not force older workers to sign their rights away without proper advice and that leaving employment is fair.

Common Examples of Age Discrimination in Workplaces

Age discrimination can be clear and direct or hidden and less noticeable. Noticing these signs allows you to defend your rights and take proper legal action.

Overt Age Discrimination

Discrimination is not always apparent or easy to spot. While some cases of age bias are very noticeable, others are much less so and could appear as usual business matters or regular workplace events. Knowing the difference is vital to help you identify age discrimination in the workplace.

A person displays overt age discrimination when they clearly state or do something that makes it obvious age is why they are taking an action against someone. For example:

  • If a recruiter in Silicon Valley says, "You need to be a digital native for this job, with less traditional qualifications," that can be considered overt discrimination
  • Similarly, in entertainment, a casting director could openly say they want “younger talent” for a role that experienced actors traditionally filled
  • A manager could explicitly tell an older worker that the reason for letting them go is that the company is looking to refresh its workforce with younger blood or that they are not eligible for a promotion because they will be retiring soon. The direct remarks strongly point to the fact that the intent was discriminatory.

Subtle Age Discrimination

In contrast, less evident age discrimination, which is sometimes called age microaggressions or indirect ageism, is much harder to prove. These cases often involve actions or rules that negatively affect older employees, even though age is not clearly mentioned. This could show up, for example, as consistently giving top innovation or high-profile projects to younger employees in the fast-moving tech industry. As long as no objective proof is provided, assuming an older employee cannot handle changes or demanding tasks is also considered subtle age discrimination.

Subtle age discrimination could happen if older employees are:

  • Passed over for opportunities to learn new skills
  • Assigned tasks that are less demanding
  • Disproportionately more scrutinized and criticized, in the name of performance management

Even though these actions are not openly biased, they can make workplaces unpleasant and stop people from advancing in their careers because of ageist beliefs.

Age Discrimination in Hiring Practices

In the competitive job market, age discrimination often appears during hiring and recruitment, which makes it harder for older people to secure jobs. It usually starts before an interview with wording in the job description that, while not obvious, makes its meaning clear. Advertisements asking for recent graduates, those with high energy, or digital natives may be ways to exclude older people from considering the job. Even though these terms do not state the age, their meaning usually shows preference for younger people, which often removes experienced individuals from the running.

Discrimination could also occur during the interviewing stage. Interviewers may use unsuitable questions that discuss age-related matters, for example, by asking about:

  • Retirement plans
  • How long you expect to work
  • Issues meant to reveal age, for example, “How long have you worked in the field?” or "What year did you graduate from college?"

In the tech industry, companies often prefer younger job applicants, sometimes because some believe they are more ready to adapt or develop new ideas. Furthermore, California’s ban on salary history questions can unintentionally help older workers by stopping them from being offered lower payouts based on their earlier, possibly lower, earnings. This mitigates one potential method of age-based economic discrimination.

Age Discrimination in Promotions, Training, and Development

Many older workers will likely encounter age discrimination in their quest for career advancement, training, and development. If growth opportunities are denied, careers may not advance, which can make experienced professionals leave their jobs. A typical example is being bypassed for a leadership position or promotion in favor of someone younger and less experienced. Some employers may falsely believe that older workers do not have the drive or technical skills to be leaders, even though they have significant experience and proven leadership skills.

Often, necessary training and development opportunities are taken away from older workers. Technology or niche industries tend to introduce new software, systems, and industry trends. However, many companies believe that older workers are not interested in training or cannot adapt, so they are not invited to these important sessions. It becomes a vicious cycle, as not being appropriately trained can hold an employee back from keeping up with industry updates, which is blamed on their age instead of the employer’s lack of fair support. The result is that seniors have limited chances of advancing in their careers, and companies lose the value that skilled employees can add from learning and adapting.

Layoffs, Terminations, and Forced Retirement

Sometimes, employers use age as a reason to fire or lay off workers, which can result in wrongful terminations, discrimination, or forced retirement.

When downsizing, companies often target the older, more valuable staff, who usually earn more because of their age. Companies could argue that these decisions are due to budget cuts or restructuring when they want to hire less experienced workers or let go of staff close to retirement to lower future pension and benefit expenses. Because of this, a neutral policy or layoff rule can end up treating people in a protected age group unfairly.

Furthermore, older workers could experience hidden or obvious pressure to accept retirement packages before they want to. The pressure might involve new tasks, fewer duties, or an unpleasant environment meant to get the employee to quit on their own. In some cases, older employees who have consistently performed well could suddenly receive poor performance reviews, which are used as a reason to terminate them.

It is also important to mention that the federal Worker Adjustment and Retraining Notification (WARN) Act and its California counterpart, the Cal-WARN Act, require companies to give notice before plant closings or large-scale layoffs. Though these laws do not address age discrimination, the notices can sometimes uncover signs of unfair treatment towards older employees.

Age-Based Harassment and Hostile Work Environments

Age-based harassment happens when someone’s age is used to make the workplace uncomfortable or hostile, which is against the protections offered by California’s FEHA. This kind of harassment requires the conduct to be frequent or intense enough to affect the victim’s job and make the workplace unpleasant.

Harassment could come from someone other than the supervisor, like a coworker, client, or customer.

Harassment involving age can involve people:

  • Constantly joking about age
  • Making negative comments about older workers' use of technology
  • Ostracizing the older employees from social activities at work

These actions, especially if they happen often or are very serious, could result in a hostile atmosphere, making it hard for the senior employee to do their job. FEHA also holds that the person causing the harassment, not only the employer, may be held personally responsible for their discrimination.

How to Prove Age Discrimination

It is not easy to show that someone was discriminated against for their age, whether by FEHA or federal law. This kind of discrimination is often hidden, and employers do not openly admit it. Thus, as a plaintiff, you must present direct and circumstantial evidence to support your case. Direct evidence is rare and involves cases with explicit statements or documents that directly demonstrate that discrimination is happening.

In most age discrimination cases, the evidence is circumstantial, which means you must infer that the discrimination happened. For example, if younger ones regularly replace older workers, their performance reviews suddenly drop right before being terminated, or they are treated less favorably than their younger peers, this may indicate age discrimination.

You should show that the reason given by the employer, like poor performance, restructuring, or lack of funds, is not the actual reason and is only a cover for age discrimination.

Like federal courts, California courts use the McDonnell Douglas burden-shifting system when reviewing circumstantial evidence cases. First, the plaintiff proves:

  • They are a member of the protected class, 40+ years old
  • They are qualified for the job
  • They suffered an adverse employment action
  • There are indications of discrimination. For example, a younger person was hired or treated better

If this is established, the employer must explain a legitimate, non-discriminatory cause for the action. Then, if the employer demonstrates the reason, it is your job as the plaintiff to show that the stated reason is a way to hide discrimination. It is crucial to prove pretext, which often involves proving that the employer’s provided reason was untrue or not the main reason for the action.

It is also strong evidence of pretext if your treatment is compared to that of younger employees who received preferential treatment even though they had similar qualifications or performance. Because the laws are so detailed, it is important to follow all necessary steps and be represented by a lawyer when pursuing an age discrimination case.

The Process for Addressing Age Discrimination

Being discriminated against because of age at work can be very difficult. If you are in this situation, you have protections and actions you can take. You can spot and deal with age discrimination in the following ways:

Document Every Incident Meticulously

It is imperative to keep thorough records when claiming age discrimination. Your complaint to the Civil Rights Department (CRD) or Equal Employment Opportunity Commission (EEOC) and any future legal action rely on these records as evidence. You should:

  • Document the details of each incident, including the date, time, place, who was involved, their actions, and witnesses
  • Write down instances of unfair comments, actions, or policies
  • Collect performance reviews, emails, and communications that reveal a pattern of discrimination or give important details, for example, the sudden decline of your performance reviews after a given age, not being provided with opportunities, and younger colleagues being promoted over you.

Have a copy of all your documents somewhere safe and accessible to you. A stronger case under the Fair Employment and Housing Act (FEHA) can be built when your records are complete.

Review Company Policies and Consider Internal Complaints

Understand what you can do internally within the company before taking external action. Several companies have policies to deal with discrimination.

Review the anti-discrimination policies and grievance procedures in the employee handbook. After that, consider reporting the issue directly to HR or a manager. There are several advantages to doing so, including:

  • You could get quick help
  • It demonstrates your willingness to solve the discrimination issue within the company

Include details of who, when, what, and the outcomes in your internal report.

Note: Reporting in-house does not extend the statute of limitations to report to the CRD or EEOC

Filing a Complaint with California's Civil Rights Department (CRD) or the Equal Employment Opportunity Commission (EEOC)

If you cannot settle the issue internally, you should file a complaint with the CRD or the EEOC.

It is usually better to file with the CRD, which handles California's FEHA. This involves an initial inquiry, an interview, and filling out a formal complaint. Importantly, you only have three years from the date of the discriminatory act to file a claim with the CRD. Your complaint may be shared with the EEOC by the CRD to secure your federal rights, but it will not file a case in federal court unless required.

The CRD could help solve the dispute, launch an investigation, or issue a “Right to Sue” letter. This letter is required before starting a private lawsuit, showing you have used all available administrative options. Meet all requests made by the CRD.

Employer Responsibilities

FEHA requires employers not to discriminate based on age and to ensure all ages are respected at work. Employers can meet this requirement by:

  • Ensuring that their policies against discrimination are complete and comply with FEHA for all areas of employment
  • Ensuring they hold training sessions regularly — All workplaces with five or more workers must offer harassment training to supervisors (2 hours) and employees (1 hour) every 2 years
  • Setting up performance systems that are fair and not influenced by age
  • Promoting age diversity in the company
  • Checking if layoffs impact older workers more than expected, and defending every decision with solid business reasons
  • Review and check for signs of age bias in the hiring process, when promoting, and terminating employees

Consequences of Age Discrimination for Employees and Businesses

Age discrimination leads to problems for people, businesses, and the economy.

For victims of discrimination:

  • Financial difficulties caused by high living expenses
  • Mental health issues like anxiety and depression
  • Challenges with their careers

For businesses:

  • Higher legal expenses due to FEHA
  • Negative effects on reputation
  • Loss of talented and experienced staff
  • A decrease in how motivated staff feel
  • A lower level of productivity and innovation

Frequently Asked Questions about Age Discrimination in California

How Many Employees Does a Company Need in California for Age Discrimination Laws to Apply?

A company has to have five or more employees in CA to apply the age discrimination laws under FEHA.

Are Retirement Packages Offered Early in California Illegal?

Not if it is genuinely voluntary and non-discriminatory. Forcing older workers to retire or singling them out unfairly might be discrimination.

What If The CRD Rules That No Violation Occurred?

You can file a private lawsuit in court because CRD will issue you a "Right to Sue" letter.

What Remedies Are Available Under FEHA for Age Discrimination?

Should you win your case, you could receive the following as compensation:

  • Back pay
  • Front pay
  • Compensation for mental anguish
  • Punitive damages, which have no cap under FEHA
  • Injunctive relief and payment for attorneys’ fees or costs

Find an Employment Law Attorney Near Me

Older workers are often discriminated against, which reduces their career opportunities and takes away valuable knowledge from businesses. It quietly causes people to believe in stereotypes, blocks new ideas, and damages society and the economy. There is a need to actively remove these biases and promote offices where the knowledge and skills of people are respected, not ignored.

If you believe your career has suffered because of age discrimination, seek legal help. At Stop Unpaid Wages, we are prepared to defend your rights. Talk to our California team today at 424-781-8411.