As the largest segment of our population gets older, age discrimination has become more common or more specifically, wrongful termination age discrimination. Many people do not know that once you turn 40 years old, you are protected from wrongful termination age discrimination by your employer.
While 40 may not seem that old, that is the age that federal and California state laws protect employees from wrongful termination age discrimination.
California employees are protected by the appropriately titled federal law—Age Discrimination in Employment Act (ADEA), and provisions in California’s Fair Employment and Housing Act (FEHA). Under these laws employers are prohibited from discriminating against employees 40 years old or older on the basis of age in hiring, promoting, pay or termination.
More specifically, these laws make it illegal for an employer with five (5) or more employees under FEHA and twenty (20) employees under ADEA, to:
- Fail to hire, discharge, or otherwise discriminate against any person with respect to compensation, terms, conditions, or privilege of employment, because of the person’s age;
- Limit, segregate, or classify employees in a way that would deprive or tend to deprive a person of employment opportunities or otherwise adversely affect his or her status as an employee, because of the person’s age; or
In addition, if an employee is retaliated against for complaining or making a formal complaint with a government agency about what he or she believes is employer age discrimination—occurring against him or her or another employee that is also illegal.
It has been recognized by courts that firing an employee or failing to hire an applicant because he or she is “overqualified” when there is no criteria in place for what constitutes “overqualified” can be a mask for age discrimination. [I thought this was an interesting statement by the court]
Wrongful termination age discrimination can be an informal or formal policy of an employer to discriminate against older employees. While an employee or applicant has the burden to prove that “but for” his or her age the employer would not have taken the discriminatory action, a case for age discrimination can be made, if:
- The employee is at least 40 years old;
- He or she is performing the job satisfactorily;
- He or she is discharged or is subject to some other adverse action, i.e., demoted or denied a job;
- He or she is replaced by a substantially younger employee with equal or inferior qualifications.
It is no defense that the older employee was replaced or passed up for promotion by someone at least 40 years old. For example, to discriminate against a 59 year old worker with a 42 year old employee is age discrimination.
A California employee that is subjected to age discrimination is entitled to loss of all wages, including back pay and front pay, loss of benefits, profit sharing, vacation and sick leave benefits, reinstatement or promotion. In addition, if the violation was willful, the employee can receive an a separate award equal to lost wages or more and is entitled to the payment of their attorneys’ fees and costs.
Before bringing a claim for age discrimination, one must first file a charge with the Equal Employment Opportunity Commission (EEOC) or the California Department of Fair Employment and Housing (DFEH). The time to file a charge of age discrimination is very short, so don’t delay when discrimination happens to you.
We can help file your claim with the EEOC or DFEH. If you feel like you have been subjected to age discrimination, you need to talk to an attorney that is knowledgeable about worker’s rights and employment law. Many employment law claims have a short statute of limitations, which means that you are not entitled to a recovery if you wait too long. The longer you wait the more likely it is you will not be compensated or the amount you are truly owed will be reduced.