Age Discrimination

For past generations of Americans, reaching your 40s was often a time to step back and measure your success. You probably had a family, a home, a steady job and the belief that if you were loyal to the company, the company would be loyal to you. 

Those days are long gone. 

Today, someone in their 40s might not be married, may not be able to afford buying a home, and sometimes lives paycheck to paycheck working at a job that seems like it’s hanging by a thread, because younger, cheaper workers are always waiting to take your place.

Unfortunately, age discrimination is an ongoing problem in workplaces across the country, including here in California. If you are an older worker and feel you have been discriminated against, there are steps you can take to protect your rights and hold your employer accountable. Here’s a review of what constitutes age discrimination, how California courts view age discrimination, and the actions you may wish to take if you have been a target, including contacting an employment attorney.

What Is Age Discrimination in the Workplace?

Age discrimination at work is the unjust treatment or harassment of employees or job candidates based on their age (over 40, see below). Middle-aged workers experience this type of workplace age discrimination in many forms. Have you been a victim of one or more of these things because of how old you are?

• Termination (may include being let go in a group of high-salaried people, a large proportion of whom are older, as a “cost-cutting measure”)
• Let go because your position was supposedly eliminated, only to have it filled under a different job title by a younger person
• Promotion denied and given to a younger colleague, often explained with buzzwords like “transformative” or “energizing”—code that means “you’re tired and boring” 
• Salary reduced
• Not hired for a job for which you are well qualified
• Hired by a new employer or promoted but denied equal pay
• Observing a pattern of only young new hires
• Insulted or harassed about your age (even if people say “it’s just a joke”) by bosses or coworkers, sometimes as simple as being called “Gramps” or being told to “make room for the next generation”
• Receiving the most unpleasant or unfulfilling tasks while less qualified, younger colleagues are first in line to take on new challenges
• Urged or forced to retire—sometimes being given the “option” of early retirement, but keeping the job means facing cuts, reduced wages and benefits, marginalized job duties, etc.
• Put on a performance improvement plan (PIP)
• Unfair disciplinary action
• Forbidden from having gray hair at work
• Left out of trainings or social events that should include you
• Forced transfer
• Denial of medical leave

Sometimes age discrimination overlaps with other forms of discrimination. Women, people of color, and those with disabilities, in particular, may find themselves facing multiple discriminatory obstacles at work or when applying for jobs. Age discrimination may also be combined with other illegal workplace acts, such as retaliation for reporting the employer for age discrimination or complaining about age-based harassment.

Is Age Discrimination Illegal?

Age discrimination is illegal in the United States by the federal government. The Age Discrimination in Employment Act (ADEA) was enacted in 1967 to protect people 40 years and older from discrimination in the following categories:

• Hiring
• Discharge
• Promotion
• Compensation
• Terms, conditions, or privileges of employment

This act is enforced by the Equal Employment Opportunity Commission (EEOC).

There are other pieces of legislation in the US that also apply to age discrimination:

• The Age Discrimination Act of 1975
• Section 188 of the Workforce Investment Act of 1998 (WIA)

What the State of California Says About Age Discrimination at Work?

Although states may differ about some of the particulars regarding age discrimination and how anti-discrimination laws are enforced, know that California’s laws reflect federal regulations. The state of California added the Fair Employment and Housing Act, which protects job seekers against age discrimination. The Employment Development Department (EDD) in California ensures compliance with both state and federal laws, as does the Department of Fair Employment and Housing (DFEH).

In fact, California laws generally provide broader protection for older employees. It’s usually better to pursue age discrimination cases through the state if you work in California than through the federal government, where it is more difficult to file a lawsuit.

What Should You Do If You Have Encountered Age Discrimination?

Every case is different when it comes to age discrimination. If the discrimination is more subtle, such as colleagues making fun of your age, it may help to speak to management or HR. If you can resolve the situation without filing a complaint or lawsuit, that’s always best. Sometimes people simply don’t know they are being offensive—they may even mean their hurtful comments to be affectionate— and they don’t realize they are actually breaking the law by making your workplace uncomfortable for you. In these cases, companies don’t want to be found liable for workplace discrimination and may work quickly to educate your fellow employees.

However, in more egregious cases of workplace age discrimination, you may have to take more drastic measures, especially if your job status or income is affected by discrimination. This entails filing an official complaint with the California Civil Rights Department, formerly known as the Department of Fair Employment and Housing, Or DFEH. You may also wish to file a lawsuit, but this can take some time and typically requires a state investigation first. That’s why most people who have experienced age discrimination in the workplace turn to an employment lawyer for assistance.

How Can an Employment Attorney Help with Workplace Age Discrimination?

As noted above, once you file a complaint with the DFEH, it may be a while before an age discrimination case is handled. The usual process goes like this:

1. Depending on your complaint, you have 1-3 years to file a pre-complaint inquiry with the Civil Rights Department online, by phone, or using a manual form.
2. The Department conducts an interview within 60 days to see if they will accept the case for investigation.
3. The case is either referred for further investigation and possible enforcement action, or the Department dismisses it, giving you the right to sue the employer in court, If the former, the Department prepares a complaint for you to sign. The complaint is then delivered to the employer and filed with the EEOC.
4. The employer responds to the complaint. The Department may at this point try to resolve the conflict through mediation.
5. If mediation is not successful or recommended, the DFEH initiates an investigation.
6. If no discrimination is found by the DFEH, the case is closed, and you may still have the opportunity to sue the employer in civil court.
7. If discrimination is indeed found, the case is sent to the Department’s Legal Division, where once again mediation is attempted to resolve the matter out of court.
8. If the dispute cannot be resolved through mediation, the Department can either file a lawsuit on behalf of the employee or dismiss the case. If the case is dismissed, you may then file a private lawsuit.

The process is long, tedious, and in the end may not produce anything at all. 

What can an employment attorney do to speed things up? They can obtain a right-to-sue notice for you immediately, which bypasses the Civil Rights Department and EEOC investigations and allows you to take the case to court right away.

Being able to file a lawsuit more quickly can be essential when your livelihood has been affected by age discrimination and you are struggling to pay expenses or dealing with a hostile work environment. You may be entitled to any or all of these damages:

• Back pay or wages
• Increased income from a promotion or raise
• Benefits and pensions
• Unpaid bonus payments
• Money for pain and suffering and/or emotional distress
• Job reinstatement
• Equitable remedies, such as a promotion Payment of legal fees and court costs
• Liquidated damages that punish the employer and deter future discrimination

Navigating state agencies and lawsuits requires experience and knowledge of employment law. At Employee Law Group, we have both of those, along with a solid track record of successful outcomes for our clients. We welcome the opportunity to speak with you about your case and help you file the appropriate paperwork if you decide to move forward.

It doesn’t cost anything to talk about your case with our team of experts in order to get a professional opinion. Call Employee Law Group today at 310-407-7358 or Employment Contract Attorney in Torrance, CA | Free Consultation (employeelawgroup.com) to let us know how we can help.