Discrimination in the workplace takes many forms. Some of the better-known examples include employee victimization due to gender, race, religion, disability, marital status, nationality, and, increasingly, age.
All the many forms of discrimination have one thing in common, however: they’re illegal. Maybe you’ve been demoted, or passed over for a promotion, or pressured into retiring early because of your age, or you’ve been bullied or harassed because of your age and appearance. These are all examples of age discrimination.
If you believe that your employer is violating your rights in the workplace, specifically over your age, there’s a well-defined set of steps to follow. Read on to learn more.
At the highest level, age discrimination is defined as employees or job applicants receiving less favorable treatment because of their age. In practice, however, age discrimination laws only apply to people aged over 40.
Age discrimination comes under the Department of Fair Employment and Housing (DFEH) and the Fair Employment And Housing Act (FEHA). This act is designed to ensure that employees can work in a safe and secure environment, free from discrimination and harassment. It also offers a remedy if any employee feels that they’re being victimized because of their age.
Note that victims can allege discrimination under the federal Age Discrimination in Employment Act (ADEA), enforced by the Equal Employment Opportunity Commission (EEOC). However, most applicants prefer to use the FEHA, as it offers employees higher worker protection standards.
According to the DFEH, Californian state law bans employment discrimination in five areas:
(1 ) Initial job advertisements
(2) The selection process, including filtering, job interviews and recruitment
(3) Working conditions, including the transfer, promotion, termination and separation of employees
(4) Terms of employment, including salary
(5) Membership of a union or employee organization, or involvement in a training or apprenticeship scheme.
A quick internet search reveals plenty of big news stories on successful age discrimination lawsuits. For instance, former sports columnist T.J. Simers won his age and disability discrimination case against The Los Angeles Times. Although he was initially awarded $15.4 million worth of damages, the figure was later reduced after an appeal.
In 2019, Google settled an age discrimination lawsuit worth $11 million with more than 200 job applicants who were systematically and illegally passed over because they were older than 40.
Against the backdrop of these real-life stories, it’s worth making a few points. First, for every high-profile victory, there’s an equivalent high-profile defeat. Second, the headline compensation figure is often reduced on appeal. Moreover, the size of settlements vary greatly. Finally, many cases are settled out of court by companies that don’t want their name publicly dragged through the mud.
Making an allegation’s one thing, but proving discrimination in the workplace is quite another. In any age discrimination case, there are four essential elements:
There are one or two minor exceptions - for example, companies that employ fewer than five people - but pretty much every employer’s obliged to comply with state laws on discrimination.
To reiterate: the laws on age discrimination only apply where the victim is over 40 years old.
For those in employment, this covers an unfavorable impact in areas like salary, benefits, terms and conditions, job assignments, promotions, training, redundancy policies, and more. For prospective employees, it covers a job application that was negatively impacted by your age: like an employer who rushes you through an interview and tells you “I was expecting someone younger.”
An employer who denies you a promotion because “at age 50, you’re too old,” or who posts a vacancy saying “only women aged under 35 will be considered for this role” is breaking the law. It’s illegal for an employer to make a workplace decision based on someone’s age.
Governments and health authorities were very quick to point out that older people are more susceptible to COVID. Has this added to the idea that older people are feeble and weak, less productive, and more likely to bring the virus into the workplace, or at the very least, impact overall performance?
The American Bar Association Journal says it expects to see a flood of age discrimination lawsuits as a result of COVID-19 and the associated economic downturn. Whether that happens remains to be seen. But isn’t it ironic that many older folks, especially in the medical profession, have come out of retirement to provide additional support, and cover for sicker, younger staff?
The first stage in any employment discrimination case is to raise the matter with your employer. If that has no impact, you should take your case to the DFEH or EEOC. These government agencies may try to organize a settlement with the employer on your behalf. If that approach fails, they may take the case themselves - or issue you with a “right to sue,” which allows you to initiate a lawsuit.
Age discrimination’s notoriously difficult to prove, which is why you may decide that your best chance of winning your case is to have a dedicated employment attorney at your side. You can be sure that your employer will be using the services of a high-powered legal team in the opposite corner. An experienced employment attorney can advise you on the different processes and deadlines involved, compile a compelling body of evidence, and help you to prove the discrimination.
Of course, you’re perfectly entitled to represent yourself or use a public prosecutor, but it’s unlikely that either of these options will match the lawyers’ abilities employed by the defense.
Discrimination in the workplace isn’t just unacceptable; it’s also illegal and a violation of your human rights. Age discrimination is just as wrong as other, more talked-about forms of prejudice, and thankfully, it’s an area that’s now being taken more seriously. But proving it can be challenging, complicated, and hard work. That’s why so many people choose to work with a dedicated employment attorney to share the heavy-lifting and increase their chances of winning.