An Employer Cannot Discriminate Against an Employee For His or Her Age

Our firm has been receiving a lot of calls recently from potential clients claiming their employer has discriminated against them based on their age. Thus, it may be a good idea to review age discrimination in the workplace. While this page provides an overview on age discrimination, our general discrimination page can be found here.

Age Discrimination in the Workplace if You Are Forty Or Older

FEHA (the California Fair Employment and Housing Act) prohibits employers from discriminating against an employee for his or her age. FEHA’s age discrimination provisions apply to those employees who are forty years of age or older. Interestingly enough, federal courts have held that there cannot be any reverse discrimination claims by younger employees. Basically, this means that those employees under forty years old cannot sue for discrimination against them in favor of older employees. For example, if an employee who is twenty-eight years old is passed by for a promotion because he is too young and they end up promoting an employee who is older, the twenty-eight year old employee would most likely not have an age discrimination case. Although the example provided may seem unfair, FEHA’s age discrimination provisions will most likely not apply to any employees younger than forty.

Proving Age Discrimination Claims

An employee alleging age discrimination must prove that adverse action was taken against him or her due to his or her age. The employee can prove this by direct or circumstantial evidence. Direct evidence can be in the form of comments regarding the employee’s age. For example, a supervisor sends an e-mail to other co-workers that he is going to fire an employee because he or she is too old and should retire soon. That would be direct evidence.

However, direct evidence is usually pretty rare. Most of the time, evidence of age discrimination is circumstantial. The California courts have adopted an analysis test in which the initial burden is on the plaintiff to show that he or she was discriminated against due to his or her age. Thus, the employee must show the following. First, that he or she was at least forty years old at the time adverse action was taken against him or her. Second, that adverse action was in fact taken against the employee. Third, that the employee’s job performance was satisfactory. And fourth, that he or she was replaced by a significantly younger person.

Here is a common example of age discrimination by the employer involving circumstantial evidence. Employee is 60 years old, and has been at the company for many years. He has never received a write up or complaints about his performance, in fact he has always performed well. Randomly, the employee is terminated and given an arbitrary reason such as it is not working out anymore or the company is cutting back financially. The employee later finds out that he was replaced by a significantly younger person who is in his or her low thirties. Now from these facts, it is not guaranteed that he will win an age discrimination case, but the facts are very suspect and suggest there could be some age discrimination on part of the company.

Contact an Age Discrimination Lawyer

If you are above the age of forty and your employer has taken adverse action against you, it may be worth calling an employment lawyers who handles age discrimination cases for a consultation and evaluation of your potential case.

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