As people are living and working longer, the potential for unfair treatment based on age has become a growing concern. Studies show that two-thirds of adults aged 45 to 74 have experienced age-related discrimination at work. Because of this, it’s crucial for both employees and employers to understand what constitutes age discrimination and how to identify and address it.
The Age Discrimination in Employment Act (ADEA) is a federal law that prohibits age discrimination against people 40 or older. Additionally, many states have enacted their own age discrimination laws, such as the California Fair Employment and Housing Act (FEHA).
Under both the ADEA and FEHA, it is unlawful to discriminate against a person because of their age in regard to any term, condition, or privilege of employment. This includes hiring, firing, promotion, layoff, compensation, benefits, and training. Employers cannot make decisions based on age-based stereotypes or assumptions. Identifying and addressing age discrimination in the workplace is an important step toward creating more inclusive and equitable workplaces.
Examples of Age Discrimination in the Workplace
There are many different forms of age-based discrimination and harassment.
ADEA sets forth examples, including:
- Failing or refusing to hire, discharge, or otherwise discriminate against an individual with respect to their compensation, terms, conditions, or privileges of employment because of their age
- Limiting, segregating, or classifying employees in a way that deprives or tends to deprive them of employment opportunities or adversely affects their status as an employee because of their age.
- Reducing the wage rate of an employee in order to comply with the ADEA.
- An employment agency failing or refusing to refer an individual for employment or otherwise discriminating against an individual, because of their age.
- A labor organization excluding or expelling a member or otherwise discriminating against an individual because of their age.
- An employer, employment agency, or labor organization printing or publishing any notice or advertisement relating to employment that indicates a preference, limitation, specification, or discrimination based on age.
Additionally, employees may also experience age-based workplace harassment, including:
- Disparaging comments about an employee being “over the hill” or a “dinosaur.”
- Repeatedly making jokes about an employee’s age and their ability to perform their job duties.
- Excluding an older worker from training opportunities or social activities because of their age.
- Sending emails or messages with offensive age-based language or references.
These are just a few of the countless examples of how age bias can manifest in the workplace. But at their core, these are discriminatory actions based solely on an individual’s age – nothing more.
The “But For” Standard of Proof
To prove an age discrimination claim, you must demonstrate that you suffered an unfavorable employment action in which age was the ultimate deciding factor—not just one of many potential factors.
This “but for” standard of proof requires showing evidence that, but for the individual’s age, the adverse employment decision, like termination or denial of a promotion, would not have occurred.
Relevant evidence can include age-related comments from managers, statistical data showing a clear pattern of favoring younger workers, or “comparator” evidence of substantially younger employees being treated more favorably despite similar qualifications and circumstances.
Recent court rulings like Gross v. FBL Financial Services have helped clarify that the burden rests with employees to conclusively prove this “but for” causation, rather than having to merely show age was one motivating factor among others.
Exceptions to Age Discrimination Claims
Despite age being a protected characteristic, it’s important to understand there are still some legitimate, lawful reasons an employer may base decisions on age within reason.
For example, having a bona fide seniority system that determines promotions or pay based on years of service is permitted. Employers can also observe the terms of bona fide employee benefit plans through defined criteria.
Additionally, the ADEA allows employers to make reasonable employment decisions motivated by factors other than age alone. An older worker with performance issues can potentially be terminated – as long as age isn’t the ultimate deciding factor.
Proving Disparate Impact
Another crucial provision of the ADEA guards against even unintentional age discrimination through “neutral” policies that disproportionately impact older workers.
Known as disparate impact claims, these often involve:
- Implementing employment practices like strict physical requirements that eliminate older workers at staggering rates
- Accurately identifying these policies’ adverse impact through appropriate statistical analyses
- Shifting the burden to employers to justify the practices as job-related and consistent with business necessity
It’s a complicated area of law, but one where our seasoned California employment attorneys have extensive experience.
Age Discrimination and Reasonable Accommodations
An often-overlooked aspect of age discrimination law is the duty to provide reasonable accommodations to older workers – particularly those with aging-related disabilities.
Under the California Fair Employment and Housing Act, once an employee requests an accommodation, the employer must initiate an interactive process to identify any reasonable adjustments enabling the individual to perform essential job functions.
Reasonable accommodations for older workers can range from modified job duties to specialized equipment to adjusted break schedules and more. But the process of identifying the appropriate accommodation must occur promptly through open communication.
Undue Hardship Analysis
Of course, an employer doesn’t have to implement any accommodation that would impose an “undue hardship” based on significant expense, operational difficulties, or threatening safety.
Performing an individualized assessment of what constitutes an undue hardship is critical. Potential alternatives that don’t pose such a burden must be explored first before claiming undue hardship.
Our employment attorneys can evaluate reasonable accommodation requests and any defenses raised by employers. We stay up-to-date on the latest guidance from the Equal Employment Opportunity Commission (EEOC) and court rulings in this area.
Remedies and Enforcement for Age Discrimination
If you suspect age discrimination, time is of the essence. California employees have between 1-3 years from the discriminatory action to file a claim with the California Civil Rights Department (CRD).
From there, our attorneys can help navigate the agency process, working to facilitate a negotiated resolution or “right to sue” notice to pursue litigation if necessary.
Successful age discrimination claims can yield remedies like:
- Recovering full back pay and front pay for lost wages
- Reinstatement to your former position or its equivalent
- Payment of attorney fees and legal costs expended
- Compensatory damages for emotional distress and suffering
We firmly believe no worker should have to endure these experiences based solely on their age. If you’ve been the target of age bias or unfair treatment on the job, don’t resign yourself to suffering in silence.
Contact our offices at Malk Law Firm immediately to discuss your rights and options for fighting against discrimination in a free, confidential consultation.