Age Discrimination

Age discrimination in the employment setting occurs when an employer treats an applicant or employee less favorably because of his or her age. Over the past few years, the Equal Employment Opportunity Commission (EEOC) -- the federal agency that interprets and enforces anti-discrimination laws -- has received more than 20,000 charges of age discrimination per year.

Both Federal and California laws prohibit employers from using an employee’s age as a basis for making employment decisions so long as the employee is at least 40 years old. Examples of age discrimination in the workplace include, but are not limited to:

• Targeting older workers for layoffs;
• Limiting the scope of job searches to younger applicants as a way to pay the employee a lower wage;
• Discouraging older employees from seeking promotions;
• Discouraging older employees from entering into training programs;
• Changing the job duties of older employees in order to make it more difficult for those employees to perform her job;
• Reducing the work hours of older employees;
• Giving older workers substandard performance reviews because “you are too slow”;
• Firing older workers and replacing them with younger workers;
• Advising older employees that “it is time for you to start thinking about retiring”.

In 1967, Congress passed the Age Discrimination in Employment Act (ADEA) in order to prevent employers from discriminating against older workers. At that time, employers would often force employees to retire when they reached a certain age without taking into account their skills or abilities. The ADEA was enacted in order to shield older employees from these types of arbitrary decisions.

The ADEA applies to all employers with at least 20 employees. It prevents employers from discriminating against employees 40 years of age and older. It is important to note that younger workers are not protected under the Act. Under the ADEA, it is unlawful for an employer to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment. Employers are also prohibited from using discriminatory practices in the provision of benefits to employees.

ADEA Coverage:

• All employers who have at least 20 employees
• Employment agencies
• The Federal Government
• State and Local Governments
• Labor Organizations with a minimum of 25 members

California has also enacted laws that prohibit age discrimination. Like ADEA, the Fair Employment and Housing Act (FEHA) protects workers 40 and older from discriminatory actions by an employer in both their hiring and workplace practices. However, the scope of protection for an older worker under FEHA is wider than under the ADEA because California law covers employers with a minimum of 5 employees.

California employment agencies are also covered under the FEHA and are not allowed to screen applicants or publish job advertisements based on age. They must also refuse job orders that ask them to discriminate against applicants on the basis of age.

Generally, in order to prove age discrimination in the workplace, you must be able to show the following:

• You were at least 40 years old at the time the discrimination occurred;
• You were adversely affected by some actual employment action your employer willfully did; and
• The motivating factor for the employment action was your age.

If you believe that you have been a victim of age discrimination, it is important for you to contact an employment attorney who both understands the law and the appropriate steps to take to either prevent your employer from taking such adverse employment action against you or to help you file a claim against the employer.

It is important to note that before you can sue your employer for age discrimination, you must first file a charge of discrimination with the federal Equal Employment Opportunity Commission (EEOC) or California’s FEHA. There are strict time limits for filing a charge. Preserve your right to sue by contacting an experienced attorney who can assess your case, help you decide how to proceed, and make sure you meet all of the requirements and deadlines. If you feel you have been a victim of age discrimination, contact Hicks & Hicks for a free consultation.