Age Discrimination in the Workplace

Age discrimination in the workplace is a rapidly growing legal issue in the United States, as baby-boomers reach retirement or struggle to stay in the workforce.  Just last week, a National Bureau of Economic Research study found that it is far harder for older workers, as opposed to younger workers, to find jobs.  This is particularly true with regard to older women.  While legal protections against age discrimination exist, it is important to know how and when they can be exercised.

Employers with 20 or more employees are subject to the federal Age Discrimination in Employment Act (ADEA) of 1967, which forbids age discrimination against people who are age 40 or older in any aspect of employment.  This includes hiring, firing, wages, delegation of assignments, promotions or demotions, layoff training, benefits, and any other term or condition of employment.  The law further prohibits harassing an employee on the basis of his or her age.

To build on the federal protections, California passed the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900) making it a civil right to seek, obtain, and hold employment without facing discrimination.  The FEHA applies to employers who regularly employ more than five employees, instead of the ADEA’s threshold of 20 employees.  California’s FEHA specifically prohibits employers from harassing or retaliating against an employee based upon race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or sexual orientation, and of course, age.  This includes all government employers, labor organizations, employment agencies and apprenticeship programs.

When bringing an employment age discrimination claim, an employee was previously limited to a “disparate-treatment” case brought under Title VII of the Civil Rights Act of 1964, in which an employee was required to prove that an employer’s discrimination was intentional.  Today, however, a “disparate-impact” case requires no proof of intent.  Instead, under the ADEA and California’s FEHA, an employee must only show that a facially neutral employment practice has a disproportionately adverse impact on a protected group, specifically older employees.  Both Congress and the courts have recognized that while “some employment practices may be adopted without a deliberately discriminatory motive, they may be functionally equivalent to intentional discrimination.”  Pippin v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1199 (10th Cir. 2006).

In 2005, the U.S. Supreme Court adopted the standard which an employee must meet to succeed in bringing a “disparate-impact” age discrimination claim against an employer in Smith v. City of Jackson, Mississippi, 544 U.S. 228 (2005).  The Court held that first, the employee bringing the claim must identify the specific practice that had an adverse impact on older workers.  Second, the employee must show that the employer’s decision that resulted in a “disparate impact” was not based on a “reasonable factor other than age.”  In turn, the employer is not required to show that it had absolutely no other, less discriminatory way to achieve its goal.  Instead, the employer need only show that the policy decision was made with a valid nondiscriminatory goal in mind, and that the means used to achieve the goal are reasonable.

Age discrimination in employment practices can take many forms, including but not limited to:  An employer posting a job offer seeking ‘college graduates,’ or qualified employees within a certain age bracket; Hiring a younger job applicant over a more qualified older employee just because the other applicant was younger; Denying a promotion to an older worker, and hiring a younger worker to fill the position; Denying older workers training or educational classes offered to other younger employees; Creating a hostile work environment for older workers by discussing work in a setting where older employees are not invited; Making jokes or snide comments about older workers; Routinely assigning undesirable or demeaning work to the older workers; Engaging in acts designed to encourage the older workers to quit; Implementing a layoff that even with no discriminatory intent, disproportionately affects the older people in the company.

There are two state agencies established to adjudicate instances of discrimination in the workplace, the Department of Fair Employment and Housing (DFEH), and the Fair Employment and Housing Commission (FEHC).  In these forums, an employee who prevails is able to recover back pay, or out-of-pocket losses, and up to $150,000 in combined emotional distress damages per respondent.  However, should a litigant choose to bring their case in civil court, a successful employee may recover unlimited monetary damages, back pay, emotional distress damages, punitive damages, any other out of pocket losses, attorney and expert witness fees.

At Steven Danz & Associates, we have extensive experience dealing with discrimination and wrongful termination in the workplace.  If you feel that your rights have been violated, prompt action and the right employment attorney is vital.  Contact the experienced employment law attorneys at Stephen Danz & Associates for a free consultation to discuss your circumstances and legal options.