Age discrimination is one of the most prevalent forms of discrimination in the workplace. In 2017, the most commonly filed complaint with the California Department of Fair Employment Housing (“DFEH”) was for age discrimination. Out of 24,779 complaints received by the DFEH, 1,836 (19%) involved age discrimination. It is important to note that these figures are not fully representative because often discriminatory and harassing conduct goes unreported. In a national survey conducted by AARP in 2017, 61% of those aged 45 and older reported seeing or experiencing age discrimination in the workforce. These numbers are much worse in the technology industry. 70% of older workers in the technology industry reported that they have witnessed or experienced age discrimination and 40% worried about losing their jobs simply because of their age.
1. What is Age Discrimination?
Age discrimination occurs when employers treat younger employees more favorably than employees 40 and older. Discriminatory acts may include but are not limited to the following:
- Hiring younger applicants over older applicants;
- Promoting younger employees over older employees despite the qualifications of older employees;
- Terminating older employees and replacing them with younger employees;
- Companywide layoffs where the majority of terminatedemployees are over the age of 40;
- Demoting older employees; and
- Denying older employees the benefits granted to younger employees such as trainings or other career-advancing opportunities.
2. How Does California and Federal Laws Protect Employees from Age Discrimination?
Both California and Federal laws protect older employees from the above-listed forms of discrimination. California’s Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against employees because of his or her age. Specifically, FEHA protects employees and job applicants that are40 years of age and older and who worked or will work for an employer with five or more employees. Federal law offers similar protections. The Age Discrimination in Employment Act (“ADEA”), however, only protects employees who work in an industry affecting commerce and if the employee works for an employer with 20 or more full-time employees.
3. What is the Legal Standard for Proving an Age Discrimination Lawsuit?
Under California law, to prove a claim for age discrimination an employee must show that: (1) the employer took an adverse employment action or an action that materially affects the terms of the employee’s job (e.g., termination, demotion, less work hours, etc.), (2) at the time the employer took the adverse employment action the employee was 40 years or older, (3) at the time of the adverse action the employee was performing his or her job in a satisfactory manner, (4) the employee’s age was a substantial motivating reason for the employer’s adverse employment action, and (5) the employee was harmed as a result of the adverse employment action.
The ADEA provides similar requirements. To provide a case of age discrimination under the ADEA, an employee must show (1) she was at least forty years old, (2) she was performing her job satisfactorily, (3) she was discharged, and (4) she was replaced by a substantially younger employee with equal or inferior qualifications or discharge under circumstances otherwise giving rise to an inference of age discrimination.
4. What Are Some of the Most Common Ways in Which Employees Discovered That They Are Being Discriminated Because of their Age?
The fact patterns that lead to each age discrimination case can vary from one employer to the next and even from employee to employee within the same employer. But, there are some common employment patterns or practices which allow employees to discover and prove age discrimination.
For instance, oftentimes, there is a pattern of negative comments by a supervisory employee about the employee’s age, such as calling an older employee an“old man” and an “old guy” or commenting about wanting younger employees. Other times, it is more subtle, like that the older employee is“resistant to change,” “outdated,” and part of the “old culture.”
Another common age discrimination employment practice is when the employer terminates the older employee and replace him or her with a much younger employee. Usually, the older employee is terminated under the pretext that his or her position has been eliminated. Later, however, the employer will hire a younger employee for the same or similar position. It is not uncommon for the employer to change the title of the position or make minor changes to the position in order to create the perception that it created a “new position.”In reality, the new position is substantially similar to the old position. In many cases, the employee could have performed all the duties of the new position. Thus, the only reason for the change was to terminate the older employee.
A third common employment practice involving discrimination against old employees is when an employer implements a reduction in workforce plan(“RIF”) that significantly impacts older employees.RIFs are discriminatory when the vast majority of employees impacted by the RIF are over the age of 40. Because older employees tend to have higher seniority in a company and earn higher salaries, employers will often time take salaries into account when conducting a RIF. In California, such a practice can constitute age discrimination when a layoff disproportionately affects older workers. And, when an employer’s RIF plan is the catalyst for the alleged discrimination, the older workers may be able to pursue damages against the employer on classwide bases.