Employees old and young have the potential to be discriminated against based on age. The unfortunate truth is age discrimination happens more often than it should. It is against the law for an employer to discriminate based on age yet that has not stopped people in positions of authority from abusing their power. Employers are not permitted to hire, terminate, promote or determine an employee's compensation based on age. The challenge is in proving the employer's actions were truly motivated by age discrimination or a belief another individual can do the job better or more efficiently. If you have been discriminated against based on your age, you deserve justice. Thankfully, the state of California has considerable procedures for complaints and fact-finding to determine if age discrimination has actually occurred. The assistance of an experienced employment attorney will prove helpful every step of the way.
Age Discrimination in Employment
Employers are barred from engaging in age discrimination according to the language of the Age Discrimination in Employment Act (ADEA). This act bars discrimination against employers along with applicants age 40 and older. State and federal laws like the Older Worker's Benefit Protection Act also protect older workers against discrimination. However, the ADEA is the main legislation on this issue.
The ADEA bars employers from discriminating according to an employee or applicant's age at any stage in the employment process. This includes the application phase, interviewing, hiring, promoting and firing. The ADEA's rules area applicable to ads, job assignments, compensation, termination and discipline. Ads for employment can't include age limitations unless linked to a bona fide qualification for work according to business necessity. Employers are barred from decreasing life benefits or health benefits for older employees. Nor can employers force an employee into an early retirement or use workforce reductions to eliminate older employees. Employees who take action according to the ADEA's specifications are guarded against potential punitive action by their employer.
The Equal Employment Opportunity Commission's Processing Procedures
The The Equal Employment Opportunity Commission (EEOC) is tasked with investigating alleged age discrimination law violations and enforcing the ADEA's provisions. EEOC cases are usually opened by workers who report discrimination. Once the EEOC receives a complaint, a charge is filed. The EEOC then investigates the charge. The agency can settle a claim between the employer and the charging party. Charges are prioritized based on the strength of the alleged facts. If the evidence is particularly weak, an additional investigation might be required. The EEOC can even interview employees, request documents and information. Once the investigation is wrapped up, the agency will go over its findings with the charging party/employer as necessary.
If a settlement can't be reached and the parties are flexible, the EEOC might offer mediation. Mediation is typically used as a means of avoiding a prolonged investigation or trial. If mediation does not prove effective, the charge will be returned for investigation. It is possible to dismiss a charge at any stage if the EEOC determines no violation of the law has occurred. If the agency can't resolve the charge by way of its processes, the charging employee/employer is permitted to file a lawsuit in a period of 90 days since receiving the EEOC's “right to sue” letter.
If the agency uncovers evidence that shows discrimination has occurred, the EEOC will provide a letter of determination. This group will also attempt conciliation with the employer to form the appropriate remedy for the problem. If conciliation is not within reach, the EEOC might file a lawsuit in federal court on the charging party's behalf. It is also possible to issue a notice that closes the case and provides the charging party with the “right to sue” letter that empowers them to file a lawsuit on their own behalf. However, such a lawsuit must be filed in the 90 days since the notice was issued.
Instances When Discrimination Based on Age is Acceptable
Plenty of people are surprised to learn some employers are within their legal rights to discriminate based on age. California and federal employment laws do not permit discrimination against employees age 40 and older. This means those under the age of 40 will not be protected by all discrimination laws. Certain states have passed employment laws that protect younger individuals from age discrimination at work. However, California is not one of these states. It is important to note in some cases it is not illegal for an employer or another covered entity to give preference to an older employee over a younger employee even if both are older than the age of 40.
Proving Age Discrimination Has Occurred in the Workplace
The ADEA mandates that the employee or applicant for the open position provides proof age discrimination actually occurred in the workplace. In order to prove age discrimination at work, one must be able to show the following: The employment action caused him or her to be adversely affected, the employer took the action based on age and that he or she is 40 years of age or older. The employment attorney must be able to prove the employment action in question occurred and that the employee's age was the motivating factor.
Signs of Workplace Age Discrimination
Plenty of employees are uncertain as to what constitutes age discrimination. Negative employer actions that qualify as age discrimination include but are not limited to demotion, denial of necessary training, denial for a promotion, verbal/public abuse or shame, threats, cyber-bullying, refusal to hire and termination. An employer that demotes or terminates an employee and refers to him or her with ageist terms is also engaging in age discrimination. If the employer lays off older workers when announcing layoffs only to keep the younger workers, age discrimination has occurred.
It is even illegal to post a job offer that points out the desire to hire college graduates or employees in a specific age bracket. Nor can an employer legally hire a younger candidate over an older candidate who is more qualified simply because the other applicant has more working years to go.
Employers are barred from creating a workplace that is hostile for older employees. Consider an instance in which workers make jokes about older workers, saddle older workers with demeaning task or discuss work after hours without inviting older employees. Some conniving employers will even go as far as performing acts meant to persuade older workers to quit.
Employers That can be Charged with Age Discrimination
Businesses or individuals that employ five or more people can be charged with age discrimination. Additional parties that can be charged with age discrimination include people or businesses that act as an agent of an employer, local or state government entity. However, there are some exceptions to these categories. As an example, the state's ban on age-based harassment is applicable to employers of every size. This includes business that employ less than five people. California law states an employer is defined as an individual, corporation, trust, partnership or another type of business.
Some small businesses are exempt from the state's anti-discrimination laws. The state's anti-discrimination protections are not applicable to businesses that employ less than five people. California regulations offer a direct means of determining if the employer in question employs at least five people on a regular basis. The employer must employ five or more people for each workday across a period of 20 weeks in the past two calendar years. These employees do not have to be positioned at the same work site or even in the state of California. They simply need to be employees of the business or organization in question.
The state of California does not consider a non-profit group or a religious group to be an employer. Therefore, religious and non-profit groups are not subject to the state's anti-discrimination laws. However, if such a group has a subdivision that operates for-profit, it is subjected to federal and state income taxes and is not exempt from anti-discrimination laws.
The Issue of Agents of Covered Employers
The state's law notes agents within its definition of what constitutes an employer. Agents of employers can be held responsible for age discrimination actions or forms of retaliation. The state defines such an agent as an individual who acts on the employer's behalf. The employer must agree that the agent acted on its behalf in order for the relationship to form in the first place. The courts tend to examine the level of control the employer has over the individual in question to determine if he or she (or the group) is an agent.
If the employer has control over the individual in that it controls the way he or she gets work done, the court might determine this person or group is the employer's agent. It is interesting to note supervisors are typically not found liable for age discrimination. Supervisors and co-workers are not considered to be the employer's agent. For the most part, employees are barred from filing a lawsuit directly against co-workers or supervisors for discrimination. However, California law protects those older than the age of 40 who are victimized by supervisors and/or co-workers. It is possible for employers to be held liable for employee actions.
Age Discrimination Against Job Applicants
California's anti-discrimination law protections extend to those applying for open positions. California has made it illegal for an employer to use an employee's age as an excuse to refuse to employ a person or refuse to choose the person for training that could lead to employment. Applicants are defined as those who file written applications with the employer. Even expressing a desire to work for the employer suffices as qualification as an applicant if there is not a written application that can be filled out.
If someone is deterred from applying for the open position due to the employer's discriminatory process, the court still might consider that individual to be an applicant. However, these protections do not extend to those who are unqualified. Employers have every right to turn down applicants who are unqualified for the position.
Even Temporary Employees are Protected by Age Discrimination Laws
If a temporary hire is brought on by an agency and the agency assigns him or her to work for the business, the temp can be considered an employee of the agency as well as the business. This means the temp agency as well as the business can be held responsible for illegal age discrimination. The temporary hire does not have to be directly compensated by either of these groups to be considered an employee. The courts are more concerned with the level of control the business or temp agency has over the worker. However, it is worth noting unpaid interns do not qualify as employees as the employer never agreed to hire them.
What to do if You Have Been Discriminated Against Based on Age
If you even slightly suspect you might have been discriminated against based on your age, there is a chance your employer or the prospective employer is in violation of California's employment laws. It is also possible the employer is in violation of federal employment laws to boot.
You need a savvy employment attorney on your side. Your attorney understands the nuances of state and federal employment laws. Furthermore, he or she has an understanding of the claim process and its deadlines. You can relax while your employer files an age discrimination charge with the proper agency. The agency might be the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH).
Our Work Discrimination Attorneys are on Your Side
If you have been discriminated against because of your age, you should not suffer in silence. Let California Sexual Harassment Attorney represent you in and out of court. Our legal team will compile evidence, attend court hearings, handle settlement negotiations and do everything necessary to help you obtain financial compensation. You deserve such compensation for your lost wages and possible emotional trauma. Give us a call at 800-905-1856 to learn more about our legal services and schedule an initial consultation.