Generally, discriminating on the basis of age in the workplace is illegal under both the Federal Age Discrimination in Employment Act (ADEA), and theCalifornia Fair Employment and Housing Act (FEHA). Under both laws, there are some special limitations on who can sue.
People under forty years old are not protected by age discrimination in the workplace laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore “too young”, that is not illegal. But if it because he or she is forty and “too old”, that is illegal.
Age discrimination can take some subtle forms, and employers are often clever about hiding their discriminatory practices. A few examples of possible age discrimination include, but are certainly not limited to, the following:
- The employer compensates younger employees with less skill and experience at a higher level than the older employees with more skill and experience.
- A company is having difficult times economically, so it fires or lays off the oldest workers first, because the oldest workers are making the highest salaries after having been with the company the longest.
- A boss gives an older employee undeserved poor performance evaluations and then uses these false records of poor performance to fire or demote the employee.
- An employer will not let an older worker take a training course or otherwise invest in the worker’s further growth.
- A company refuses to hire anyone who looks older than a certain age, simply to maintain a youthful company image.
- Management turns down an older employee for promotion, instead hiring someone younger for the position.
- The employer is removing older employees and replacing them with younger employees.
Sometimes when employers are down-sizing, they lay people off by offering “golden handshakes”, which are special packages to employees who agree to take early retirement. This is not age discrimination. However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal.
It is illegal to replace a person over 40 with a person under 40, if age is the reason. It is also illegal to replace a person over forty with a younger person who is also forty.
The Older Worker’s Benefit Protection Act provides protection of benefits or benefit packages for older workers. According to the act, an employer must provide equal benefits for older workers as they do for their younger counterparts. An employer can accomplish this by either providing packages that are equal in benefit or by spending the same amount of money on each person. An individual cannot waive his right under this act, unless that waiver is knowing and voluntary.
It is not illegal to replace people who are making high wages with people who will make less because they have less seniority.
However, this usually means replacing older workers with younger ones. If the wage considerations are not the real motivator, and the employer is actually trying to replace older workers with younger ones, that it illegal. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers.
The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants who are 40 years of age or older from employment discrimination based on age. Such discrimination violates the ADEA when it is applied to terms, conditions, or privileges of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.
If you have been a victim of age discrimination, or are an employer being challenged, contact an experienced age discrimination attorney in Sacramento at the Law Office of Bowman and Associates, APC to schedule your Free Initial Consultation today.