The federal Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA) both make it illegal for employers to terminate or discriminate against an older employee in the terms and conditions of employment, including in compensation, benefits, position and schedule. Both laws also make it illegal to not hire a prospective employee because of his or her age.
The federal law applies to employers with 20 or more employees. The state law provides more expansive coverage in that it applies to employers with 5 or more employees.
A person does not have to be very old to be covered. Both the federal and State laws define “older” individual as anyone age 40 or older.
Age discrimination takes many forms, but by definition it involves employers taking personnel actions against employees because of their age. However, sometimes what appears to be discrimination may not actually be discrimination. For example, firing the oldest worker in the company is not illegal if it was done because the worker could no longer meet company standards.
The question usually comes down to motive. Did the employer have discriminatory intent? Did the employer take an adverse action against the older worker because of his or her age? In many cases the employer will provide a reason justifying the adverse employment action which appears legitimate and non-discriminatory at first blush, but upon closer scrutiny is shown to be a pretext for discrimination.
There are various ways to prove age discrimination, such as overt statements (“Have you thought about retiring?’), disparate treatment without rational a basis (being written up for things younger people can do with impunity), or even statistical analyses (i.e., calculating whether adverse personnel decisions affect older workers disproportionately).
If you believe you have been discriminated against because of your age, please call Hubbs Disability Law for a free consultation at (800) 883-3492, or fill out or contact form.