Age Discrimination in the Workplace

This page discusses California’s age discrimination in the workplace laws. The goal here is to help individuals decide whether or not they should contact an employment lawyer. It is important to remember that while this page discusses age discrimination laws, it is not a substitute for speaking with an attorney. If you feel you were terminated because of your age, we highly recommend you contact an employment lawyer. If you are looking to learn about another type of discrimination, feel free to visit our main discrimination page.

This page covers the following subjects:

  • The basics of California’s age discrimination law
  • A comparison of the California Fair Employment and Housing Act and the Age Discrimination in Employment Act
  • Notable cases
  • What you can recover in an age discrimination case
  • Average verdicts and settlements in age discrimination cases
  • Statute of limitations
  • The cost of an age discrimination lawyer
  • Free consultation

Age Discrimination in the Workplace Basics

Age discrimination drains California’s workforce of valuable human experience and wisdom. Thankfully, the state’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against workers based on many factors, with age being no exception. This includes discriminatory practices involving compensation, working conditions or privileges of employment.

In addition to state law, federal law offers protections in the form of the Age Discrimination in Employment Act (ADEA). According to the United States Employment Opportunity Commission (EEOC), which enforces federal anti-discrimination laws, Californians filed 1,572  charges of age discrimination in 2015. This figure accounted for 25.4 percent of discrimination charges statewide.

Comparison of the Federal ADEA and the California FEHA

Both state and federal laws specifically prohibit employers from discriminating against workers over 40. Such age discrimination in the workplace can take the form of refusing to hire, promote or fairly pay a worker because he or she is 40 or older. Often times FEHA provides more protections against discrimination for Californians than federal law. FEHA also does not put a statutory limit on awards, making it the preferable type of case to pursue for CA employees.

Also, alleging discrimination and proving age discrimination are two different things. The burden is a little bit different between the Federal ADEA and State FEHA. Most lawyers believe it is easier to prevail under FEHA.

Notable Cases

Nickel v Staples: Significant media attention recently focused on the case of a facilities manager in Los Angeles County named Bobby Dean Nickel, who was 64 at the time of his firing. Originally hired by Corporate Express in 2002, Nickel claimed to have received favorable reviews from management for years. This changed in 2008 when Staples Inc. acquired the company.

Evidence was presented at trial that the new management sought to replace older, higher-paid workers with low pay, part-time employees.  It was claimed a manager increased Nickel’s workload in an attempt to force him into retirement.

In 2011, Nickel was fired after the company accused him of stealing a bell pepper from the plant cafeteria. A jury agreed he had been terminated because of age discrimination and awarded Nickel $3.2 million in compensatory damages and $22.8 million in punitive damages. We’ve written about this case before because it is, arguably, the largest age discrimination in the workplace verdict of its kind in Southern California.

Herr v Nestle: In 1997, Richard Herr, a 49-year-old former employee of Nestle USA Inc., sued the company under California’s FEHA law, claiming age discrimination in the workplace. Employed by the company (originally Carnation) since 1989, Herr received positive reviews from management in his role as an internal auditor. But despite demonstrated abilities, Herr was repeatedly passed over for promotion, with choice jobs going to less qualified employees in their 30s.

During a 1993 meeting, a manager told Herr many advancement opportunities would be opening in the future. In the meantime, Herr would be reassigned to a different position in order to better qualify for promotion. Frustratingly, after two months in this new position, the company handed Herr a layoff notice stating the position was being eliminated.

At trial, evidence was presented that Nestle management actively sought to promote younger employees.  A 1993 memorandum issued by company CEO Helmut Maucher stated that when it came to human resource policies, Nestle would “continue hiring, identifying and developing young people to have in the long term enough resources for future management.”

At a management meeting in 1990, Executive Vice President Robert Mason referred to Carnation employees (hired before Nestlé’s takeover) as old and added that Nestlé’s policy was to “promote young, energetic people in management positions.” The VP said Carnation had a lot of “deadwood” and instructed staff to “see about getting rid of the deadwood.”

The jury found Nestle intentionally discriminated and constructively discharged Herr because of his age. He was awarded more than $5,000,000 in damages. If you want to know more about constructive termination, watch Mr. Robertson’s detailed YouTube video here.

According to a May 26, 2000 Los Angeles Times article, the judge who heard the case ordered Nestle to announce to its 19,000 US employees that it would repudiate its earlier memo outlining the company plan to hire and promote “young people.”

Age Discrimination in the Workplace | Employment Lawyer

What You Can Recover in an Age Discrimination Lawsuit

It is possible for victims of age discrimination to collect damages in the form of lost wages. If for instance, you earned $90,000 per year at the time of your termination, you could potentially recover $90,000 for each year you are unemployed. You might also receive compensation for emotional distress such as anxiety, depression, fear, and stress as well as mental suffering.

Age discrimination victims can potentially collect compensation for legal fees—an amount based on the hours your attorney worked, and his or her hourly rate. California’s lawmakers inserted this fee statute to incentivize lawyers to take on age discrimination cases because such cases often award smaller economic and emotional distress damages. 

If you would rather watch this video on YouTube, click here.

Average Verdicts and Settlements

Most discrimination cases, whether based on race, sex or age, settle. Since all settlements are subject to confidentiality provisions, there is very little data available. But based on our experience, the majority of age discrimination in the workplace cases settle for less than $50,000. These cases have significant value because of the difficulty age discrimination victims face in the future job market. Unfortunately, it is very difficult to find a job when you are over the age of 50.

The Statute of Limitations for Age Discrimination in the Workplace

If you believe you are a victim of age discrimination in the workplace, it is important that you don’t delay in taking action. Generally, you have one year from the date of the alleged incident to obtain a right-to-sue letter from the Department of Fair Employment and Housing (DFEH).

Your attorney will usually obtain this letter for you, but if you have already requested or received one, be sure to let your attorney know. He or she will have one year from the acquisition date to file your case in court or arbitration. For employees of public entities, the statute of limitations may be as short as six months. Because these statutes of limitations vary, we recommend you consult an employment lawyer as soon as possible.

The Cost of a Lawyer

Age discrimination lawyers are typically paid with a contingency fee. In a contingency scenario, you do not pay any money out of pocket. Rather, the labor lawyer is paid only if he or she successfully recovers monetary damages for the client. The amount of the fee is a percentage of the damages agreed upon before the attorney takes on the case. Most employment lawyers charge the industry standard. Contact our office for more information.

Free Consultation

If you would like to know if your recent termination or employment experience qualifies as age discrimination, call a our employment lawyer for a free consultation. There is no obligation for calling and this office never charges clients for case evaluation.