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:

For further information on your rights in the work place, please visit our other websites:

Discrimination FightDiscrimination.net
Wrongful termination FightWrongfulTermination.com
Sexual harassment FightSexualHarassment.com
Unpaid wages and overtime MyWorkMyWages.com
Family and medical leave FMLALawyers.com
Pregnancy discrimination PregnancyRights.com
Disability discrimination FightDisabilityDiscrimination.com
Age discrimination FightAgeDiscrimination.com
Employee Rights Blog CaliforniaEmployeeRightsAttorney.

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