The myth that older persons are less valuable in the workplace is one that has been around for a while. Sadly, it results in the denial of fair employment opportunities to hundreds of thousands of skilled individuals. Simply because they are considered old.
The American Association of Retired Persons (AARP) recently did a survey on age discrimination. It was found that 61% of older persons are either suffering age discrimination or have been victims in the past. This means that 3 out of every 5 older persons are deprived of the right to work.
This is wrong, as far as California and federal law are concerned. The Age Discrimination in Employment Act (ADEA) was specifically enacted to prohibit employers from discriminating against older persons on account of their age. California’s Fair Employment and Housing Act also prohibits age discrimination for employees who are 40 and older.
If you have suffered age discrimination in the workplace, you should know that the law entitles you to seek remedy. You can hold your employer to account and get compensation for any damage you have suffered or advantages lost due to the discrimination.
At Eldessouky Law, our primary goal is to help ensure that you understand your rights. We also work to safeguard those rights by fighting aggressively on your behalf. If you suspect that you have been discriminated against on account of your age, contact our age discrimination lawyers today.
How do I know I have been a victim of age discrimination?
Signs of age discrimination may not always be obvious. Usually, employers would prefer not to let on that they are being discriminatory. They will often conceal their actions under the guise of lawful employment actions.
But there are several signs you can look out for. Some of the most common signs that you are being victim of age discrimination include:
- Failure to secure a job: This is often a clear pointer. If you have tried several times and failed to get a job that you were very qualified for, you may have been discriminated against. According to the AARP survey, 76% of respondents believed that age discrimination was a major or minor reason why they have not been able to secure a job.
- Wrongful termination or demotion: Firing older workers may be discriminatory. Especially when replacing them with younger candidates. Similarly, promoting younger workers while bypassing qualified older workers may be discriminatory.
- Withdrawal of certain benefits or compensation to older workers: The benefits may be in the form of allowances or a raise. Such instances may show that the employee was unfavorably treated by the employer or supervisor.
- Sudden and gross decline in performance review results: This should be carefully watched. When it feels like your performance review falls dramatically for no clear reason, there may be a case of age discrimination.
- Tacky comments in the workplace: It is immaterial whether those derogatory comments are made by persons of the same age bracket. AARP’s Value of Experience Survey (2017) shows that ageist comments are the most frequent type of age discrimination. The report states that about 24% of older workers report being subjected to negative comments about their age from a boss or coworker. In some cases, the discrimination may be in the form of a statement or two and some courts have found that to be enough.
How can I prove my age discrimination case?
Proof of age discrimination may be with regard to disparate treatment or disparate impact. Disparate treatment occurs when an employee is singled out or specifically targeted because of their age.
Disparate impact is when an employer introduces a policy that affects some employees differently. The policy often applies to all employees but has a significant negative impact on employees aged 40 and above. Certain elements must be proven to show that disparate treatment has indeed occurred. These include proof by the employee that:
She was 40 or older at the time of the act alleged discriminatory act;
- She is qualified for the position/job.
- She has experienced an adverse employment action. This may be a demotion, loss of employment privileges, changes of terms of employment etc.
- The alleged adverse action arose under facts from which discrimination may be inferred.
The employee must also show that she was targeted for discrimination because of her age. The US Supreme Court took this position in Gross v. FBL 557 U.S. 167 (2009) where it stated that employees must show that age discrimination was the motivating factor behind the action.
The decision imposes a higher standard of proof for age discrimination. Before this decision, what was required was proof that the reason for the adverse action was mixed in with age discrimination.
Disparate impact can be proved by showing that the employer’s policy or employment practice is unequal in impact. Or that it has a disproportionately negative impact on the older members of the workforce.
Do stray remarks also amount to age discrimination?
Stray remarks are essentially discriminatory comments that are made in passing. It is called a stray remark because it does not have to be made at the time an adverse discriminatory employment decision was taken.
American courts have generally ruled against plaintiffs who have sought to rely on stray remarks (Sandell v. Taylor-Listug, Inc. (2010) 188 CA4th 297, 320, 115).
This is because stray remarks, without more, only lend an inference of discrimination. To prove age discrimination, there must be further evidence such as statistics or a history of discriminatory conduct by the employer.
However, in Reid v. Google, Inc., 155 Cal. App. 4th 1342 (2007), the California Court of Appeals stated that stray remarks may be used to weigh other evidence in the trial. This is in line with FEHA which states that the courts should interpret the laws prohibiting age discrimination “broadly and vigorously”.
Can I be fired for filing an age discrimination complaint?
No. You cannot be fired for filing an age discrimination complaint. FEHA and the ADEA specifically prohibit employers from retaliating against employees that speak up against discriminatory practices.
If your employer is threatening to or has fired you for filing an age discrimination complaint, you have a right to redress. The law allows you to sue your employer and recover adequate compensation for the injustice done to you.
You are entitled to this protection even if you were not the one that filed the complaint. If you testified on behalf of another employee or aided in a hearing, the law also prohibits your employer from retaliating against you.
Eldessouky Law can help you
If you have been experiencing age discrimination in your workplace, you need not wait until your employment has been terminated before you seek appropriate remedy.