Older Worker Rights
Under the Age Discrimination in Employment Act of 1967
(ADEA) and the California Fair Employment and Housing Act (FEHA), workers over
the age of 40 may not be discriminated against or subjected to harassment
because of their age. When an employer intentional discriminates against an
older worker because of age, it is sometimes referred to as "disparate
treatment."
The ADEA specifically prohibits discrimination against
a person because of her age with respect to any term, condition, or privilege
of employment, including hiring, firing, promotion, layoff, compensation,
benefits, job assignments, and training.
Reductions in Force
Reductions in force (or "RIFs") usually involve
layoffs of a significant number of employees by an employer for economic
reasons (downsizing). However, an employer may attempt to rid itself of older
workers in such a downsizing and subsequently replace them with younger workers
of no greater qualifications or experience. Employers are required by law to
provide employees affected by a RIF with the age of each other affected
employee so it may be determined whether age played a role in the layoff
decisions. A clever employer will usually retain a few older employees and cast
out a few younger employees to make the RIF appear non-discriminatory.
Proving Age Discrimination
There are several means to prove age discrimination.
One method of proof is to show that the employer replaced an older worked with
someone substantially younger who is no more experienced or qualified for the
job. Courts may not treat a replacement employee as substantially younger
unless the employee is at least five years younger. womanThe greater the
disparity in age between the younger employee and the older employee she is
replacing, the more likely a finding of age discrimination will result. Age
discrimination may also be proven with evidence that the employer replaced
other employees with substantially younger people. Better treatment of younger
employees may also reveal age discrimination.
An employer's insurance plan which only covers younger
workers may be evidence of age discrimination.
Discriminatory comments and questions
Referring to older employees by derogatory names such
as "old geezer," "old buzzard," old goat," "old bag," and "old gummer" may be
evidence of age discrimination. At times, employers may even tell employees
before firing them that they are "too old" or that "fresh blood" is needed at
the company. Other comments courts have found to be evidence of age
discrimination are:
- “After women reach a certain age, they're of
no use...chalk it up to menopause”
- “This territory is too big for an old person
to handle”
- “One of the goals for the upcoming year is to
get some younger people on board to raise the IQ of the staff”
- “You just can't remember, you're getting too
old”
- “What the company needs is aggressive young
men"
- “We are ‘going younger.”
- “You're too old and set in your ways; we need
younger employees.”
- “We can't train an old dog new
tricks.”
- “We need to get younger people who cost
less.”
- “We have got to get some older people to
retire so we can save the jobs for the younger people.”
- “That older employees have problems adapting
to changes and to new policies”
- “We need a fresh new look”
- “When are you going to retire?”
Comments like these and inquiries about when an older
employee "plans to retire" are strong evidence of age discrimination. Such
comments may be "direct evidence" of discrimination.
Are workers of less than 40 years of age
protected?
No. Employees who are less than 40 years of age may
not sue for discrimination based on their age (though they may be victims of
age discrimination). Such discrimination is not illegal.
Can unintentional discrimination be challenged in
court?
Yes, unintentional discrimination may be challenged in
court. If a policy or rule of an employer has the effect of favoring younger
employees or discriminating against older employees, an affected individual may
bring a lawsuit for age discrimination under a "disparate impact" theory. Such
cases may even be brought as a class action by one such employee on behalf of
all other affected individuals. Class actions can be effective at challenging
widespread discriminatory practices when the victims claims are generally the
same and similar relief may compensate all of them fairly.
For a free consultation about age discrimination in
the workplace with an experienced employee rights attorney, contact David
Spivak:
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