How Law Mart Can Help with Your Age Discrimination Claim

Victims that endure age discrimination deserve justice, however,  proving age discrimination can be difficult. Employers will often strive to cover up their discrimination actions by stating that younger applicants are simply more qualified or that layoffs are inescapable. To make matters even more complex, not all types of age discrimination are opposed to the law.

At Law Mart, our experienced age discrimination attorneys can help you prove the following elements:

• An employer is covered by age discrimination laws.
• You (as a job applicant or employee) are 40 years old or older.
• You were negatively affected by an employment action.
• The adverse employment action was taken because of your age.

Our age discrimination attorneys have substantial knowledge about state and federal employment laws. For example, California’s anti-discrimination laws apply to employers with five (5) or more employees, individuals that act as an agent of a covered employer, and local or state government entities. If you are a job applicant or employee, you may be entitled to seek an age discrimination claim against the employer. In spite of the fact that independent contractors typically aren’t safegauded by California’s anti-discrimination laws, they are still protected by regulations that forbid age-based harassment.

What Constitutes Age Discrimination at Workplace?

Age discrimination at work occurs when an employer acts towards a prospective job candidate or employee adversely because of their age. Common examples of age discrimination include:

• Not getting hired because of your age
• Getting fired, laid off, or being forced to quit because of your age
• Not receiving a promotion because of your age (instead, the promotion went to a younger employee)
• Getting demoted because of your age
• Getting your pay or work hours reduced because of your age
• Offered less pay, benefits, or job assignments because of your age
• Getting subjected to an employers’ practices or policies that discriminate based on age
• Receiving poor or negative performance reviews related to your age (such as claiming you are unable to learn a new technology because of your age)
• Getting terminated after an employer makes age-related comments

More often than not, majority of age discrimination cases involve employees who get mistreated by a younger manager or supervisor in the workplace. Nevertheless, age discrimination can still happen when a manager or supervisor is the same age or older than the victim.

Which Laws Protect Against Age Discrimination

In the State of California the employees are protected against age discrimination by two primary sets of laws:

• The Federal Age Discrimination in Employment Act (ADEA)
• California’s Fair Employment and Housing Act (FEHA).

While both laws apply to California employers, the extent of protections they provide to employees may vary. For instances, the ADEA only covers employers who have at least twenty (20) employees.⁠ On the other hand, FEHA applies to employers with at least five (5) employees.⁠

What Are My Rights Under the ADEA 

The ADEA is the prime federal law that forbids employers from discriminating against job applicants and employees who are at least forty (40) years old. This law preserves workers from age-based discrimination in every phase of the employment process, as well as job postings, interviewing, hiring, compensation, job evaluations, discipline, promotions, demotions, job training, job assignments, and termination. Some common examples comprise of:

• Age preferences: Employers cannot require an age preference for a job. Requirements such as being a digital native indicates an age preference for applicants under 40 years old. However, requiring a candidate to be a college graduate isn’t against the law since it does not express an age preference as people graduate from college at various ages.
• Denial of benefits – As people age, health, life, and other insurance premiums tend to increase. However, employers must provide all employees the same benefits regardless of age even if it means having to pay a higher premium for older workers.
• Mandatory retirement – Although formal policies of requiring workers over 65 to retire is no longer in place, informal retirement policies still exist in some workplaces. Some employers do this by subtly changing job descriptions or encouraging older workers to retire. While it is not illegal to be asked to retire early, there are specific minimum standards and requirements that must be met for the voluntary retirement to be considered valid.

The ADEA not only interdict employers from discriminating against older workers in favor of those who are under 40, but however it also bans employers from discriminating among older workers. For instance, an employer can’t hire a 48-year-old applicant instead of a 54-year-old one simply based on age.

The protection under the ADEA is applicable to all private employers with twenty (20) or more employees working in both federal and local governments. It also applicable to state governments, however, for the most part, their employees can’t sue them directly for age discrimination. Those who suffer of age discrimination may be entitled to compensatory damages including lost wages, benefits, back pay, and front pay caused by the discriminatory performance conducted by the Employer. Non-economic injuries such as emotional distress and pain and suffering may also be obtainable. In some cases, victims of such events may be awarded punitive damages if the defendant’s behavior was considered to be malicious and intentional. 

Who is Secured Against Age Discrimination in the Workplace?

The Age Discrimination in Employment Act protects employees that are 40 and older in the workplace. It does not however safeguard employees under the age of 40 or employees who are in high policymaking positions that are eligible for a pension that is worth more than $44,000. The act also does not cover individuals in age-specific jobs such as an actor or model. In many instances, certain federal employees, firefighters, police officers, and tenured faculty at universities may have exceptions in their contracts that stop them from age discrimination.

In order to prove your age discrimination has merit in your case, you must work for an employer who is covered under ADEA or FEHA. As previously mentioned, the ADEA only covers employers who have at least twenty (20) employees while the FEHA applies to employers with at least five (5) employees.⁠ ADEA is applicable to both private and public employers. FEHA also applies to public and private employers, but also includes labor organizations and employment agencies. If an employer meets these standards and has declined to hire you, fired you, passed you over for a promotion, or treated you unjustly because of your age, you may be entitled to a claim for age discrimination at work.

How Do You Prove Age Discrimination in the Workplace?

You can prove age discrimination in the workplace by utilizing either one of these two legal theories: the disparate treatment theory and disparate impact theory.

What Is The Disparate Treatment Theory 

In using the disparate treatment theory, one must demonstrate that the employer intentionally discriminated against them because of their age. The following components are needed to be confirmed when using the disparate treatment theory:

• The individual was a member of a protected class (40 years old or older).
• The employer knew the individual was in a protected class.
• The individual suffered an adverse action of employment such as getting fired, demoted, reduced pay or hours, or change in benefits or terms of employment.
• Other individuals who were in a similar employment situation were not subjected to the same treatment and were treated more favorably.

What Is The Disparate Impact Theory

In contrast, disparate impact theory differentiates from the disparate treatment theory as the employer’s intention is not at issue. On the other hand, the theory focuses on whether the employer’s policies and practices are inequitable and discriminatory.

Disparate impact discrimination can materialize through hiring, firing, promotion, and other employment practices within a company.

Although appearing objective on the surface, the results of these employment practices negatively affect a protected class. In order to prove a disparate impact theory, the following components must be confirmed:

• An employment practice or policy has a dissimilar effect on a certain group of individuals who are part of a protected class.
• The individual was a member of the protected class.
• The consequence experienced by the individual was a direct result of the employment practice or policy.
• An alternative non-discriminatory employment practice or policy exists.

An example of disparate impact theory might include that an employer requires a job applicant to in some ways identify older individuals and the results were later used to determine layoffs.

What Are The Signs of Age Discrimination in the Workplace?

Majority of employers or supervisors who tend to discriminate against individuals based on age will not acknowledge it. They may attempt to justify their inadmissible actions by blaming it on non-age-related factors including poor employee performance, workforce cutback, downsizing, or company organization. However, there are some familiar signs of age discrimination that victims can look out which include:

• Discriminatory comments related to an employee’s age including jokes about their age or appearance, asking an employee when they plan to retire, comments or about an employee’s technology skills.
• An older employee replaced by a significantly younger one, who is less qualified for the same job.
• Older employees being disproportionately laid off or affected by workforce reductions.
• Preferential treatment with regards to pay, promotions, or working conditions given to younger employees.
• Training or growth opportunities not provided or offered to older employees.
• Older employees being excluded from important meetings or getting some of their duties taken away.
• Having your job title revised or eradicated without a reasonable explanation.
• A consistent pattern of hiring mostly younger employees.
• Verification of inconsistent or different workplace rules applied to employees of different ages.
• Verbal discrimination or verbal harassment.
• Receiving a performance improvement plan (PIP) even though your work performance has been exceptional.

Causation of Age Discrimination 

At the same time people are living and working longer than ever before, the number of older adults in the workforce continues to grow. In 2018, there were about 24% of men and about 16% of women ages 65 and older in the labor force. By 2026, that number is forecast to increase with 26% of men and 18% of women ages 65 and older in the labor force. Alas, this ageism in the workplace is nothing new in society. For instances, between 1997 and 2018, it has been projected that 423,000 workers filed age discrimination claims with the Equal Employment Opportunity Commission (EEOC) which was about 22% of all workplace discrimination claims.

One case study has shown that when filling out online job applications, older adults were interviewed at a rate similar to younger job applicants. Nevertheless, after an in-person (face to face) interview, older candidates were offered jobs at a rate 40% less in comparison to younger job candidates with similar skills.

Although employers generally don’t have a specific dislike for older employees, their actions are typically influenced by greed or stereotypes. For example, tech companies are particularly known for hiring younger employees. The average median age for employees working at the top 17 top tech companies was 32 years old compared with the median age of 42 years old for the total United States workforce. Employers may falsely believe that older employees will make their company seem less innovative or cutting-edge.

Predictably, once an older employee has lost their jobs, they have a more difficult time finding another job compared to younger job seekers. A 2020 study published by the National Bureau of Economic Research found that workers aged 40 and older are about half as likely to receive a job offer in comparison to younger applicants if the employer is aware of their age.

Age Discrimination and Harassment

In inclusion to prohibiting discrimination the FEHA also fobids age-based harassment. Harassment based on an individual’s age happens when an employer produces or allows an offensive, abusive, or intimidating work environment that negatively affects an employee’s ability to perform his or her role in the company.

Common examples of age-based harassment at the workplace include offensive or disparaging remarks about an individual’s age, jokes, slurs or in some cases gestures. Victims who have been agonized from these types of comments may have a claim for age discrimination and a separate claim for age harassment. This can lead both the employer and the individual harasser to be held liable for the harassment claim at the workplace.  

Age Discrimination in Hiring 

In California the workers are protected by both state and federal laws in opposition to age discrimination. For example, the Age Discrimination in Employment Act generally makes it unlawful for an employer to include age preferences, specifications, or limitations in job advertisements or notices when marketing. Nonetheless, there may be an exception in rare instances where age is shown to be a bona fide occupational qualification (BFOQ) that is reasonably necessary for the normal operation of business. For instance, if the job has a minimum age requirement such as a bartender who serves alcohol, then the employer may inquire about the job applicant’s age.

Although the law doesn’t prohibit employers from asking job applicants or employees about their age including during the job application process, asking about a person’s age could demorlize older workers from applying to certain jobs due to fear of possible discrimination. If you have been a victim of age discrimination during the hiring process, document the incident and contact an age discrimination lawyer to discuss your possible claim today.

Age Discrimination and Forced Retirement

For numerous reasons, a company may ask you to retire early. While it is not illegal to offer voluntary early retirement, they often require an employee to waive their right to file a claim against the employer.

However, there are specific minimum standards set by the Age Discrimination in Employment Act that must be met for a waiver to be considered and valid. In addition to other requirements, a valid Age Discrimination in Employment Act waiver must meet the following components:

• Must be in writing and understandable.
• Specifically refer to the Age Discrimination Acts rights or claims.
• Not waive claims or rights that may arise in the future.
• Be in exchange for valuable consideration.
• Advise the employee in writing to consult an attorney before they sign the waiver.
• Provide the employee with at least 21 days to consider the agreement. The employer must also give the employee at least seven days to revoke the agreement after signing it.

Each employee’s situation can vary. Regardless, if you were offered voluntary early retirement, it’s best to have an experienced age discrimination lawyer to review the documents before you sign any documents.

What Damages Can Be Recovered in an Age Discrimination Lawsuit?

Victims that suffered age discrimination are entitled to compensation for their losses. Settlements involving age-based discrimination may comprise of:

• Economic damages – These refer to compensation for verifiable monetary losses including lost wages, benefits, back pay, and front pay caused by the discriminatory conduct.
• Non-economic damages – These damages are intended to compensate victims for subjective harm such as pain and suffering, emotional distress, humiliation, or reputational damage caused by the discriminatory conduct.
• Punitive damages – Punitive damages are awarded in special cases where the defendant acted maliciously. They are designed to punish the defendant and to deter others from acting in a similar manner in the future.
• Attorney fees – Compensation awarded based on the amount of time your attorney spent on the age discrimination case.

An age discrimination attorney can tell you more about the various types of damages you may be entitled to and the total value of your case.

Statute of Limitations for Age Discrimination in the Workplace Claims

The statute of limitation refers to the deadline a victim has to file a claim. In California, victims of age discrimination must file a workplace claim within 180 days of the discriminatory act or from the time they became aware of the discrimination act.

Call Law Mart For An Age Discrimination Lawyer Today

Age discrimination occurs often in the workplace because employees lack knowledge related to age discrimination laws and regulations. Furthermore, many victims fear their employer may retaliate against them for filing a complaint by terminating their employment. Nevertheless, if you have been discriminated against or treated unfairly in the workplace because of your age, don’t hesitate to contact a experienced age discrimination lawyer at Law Mart today. Our Age Discrimination attorneys  accept clients on a contingency basis, meaning that you don’t have to pay anything during the legal process. If we don’t win your case, you won’t pay anything. Contact Law Mart today for your free consultation.

Age Discrimination Lawyer FAQs

What is the average settlement for age discrimination? 

Each case is special and therefore settlement amounts may vary. It is strenuous to determine the average settlement for an age discrimination lawsuit but there are limits on the amounts of compensatory and punitive damages a victim can endure. In accordance to the EEOC, the limits vary depending on the size of the employer: For employers with 15-100 employees, the limit is $50,000; for employers with 101-200 employees, the limit is $100,000; for employers with 201-500 employees, the limit is $200,000; and for employers with more than 500 employees, the limit is $300,000.

How do I prove age discrimination in California?

To prove age discrimination in California, victims must:

• show the employer is covered by age discrimination laws,
• be at least 40 years old,
• have been unfavorably affected by an employment action, and the employer took an adverse action because of the victim’s age.

Can you sue for age discrimination?

Individuals who have experienced age discrimination at work can bring an employment action against an employer for the discrimination. An experienced age discrimination attorney can help victim seek compensation for their losses.

What qualifies as age discrimination?

Age discrimination involves treating a job applicant or employee less favorably because of their age (40 years old or older). Most age discrimination cases involve employees who get mistreated by a younger manager or supervisor. However, age discrimination can still happen when a manager or supervisor is the same age or older than the victim. The most common examples include not getting hired, getting fired, not getting promoted, getting your pay reduced, or receiving poor performance reviews because of your age at the workplace.