Government Code 12940 and 12941 make it illegal to discriminate based on age in California. Under Government Code 12926, the FEHA, like the federal Age Discrimination in Employment Act, prohibits discrimination against people over the age of 40. (b). The FEHA, on the other hand, offers more remedies than federal law. California law, for example, provides for emotional distress and punitive damages to be recovered, with no legislative cap on injury awards. You might need an Employment Lawyer to help you.

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Various sectors have their own hallmark labor code breaches, which are often reported in the press. The tech industry is often accused of sexism and gender inequality. Wage and hour cases are commonplace in the foodservice industry. Sexual assault allegations are made by both staff and consumers at fashion stores. Age discrimination, on the other hand, is an often overlooked bias in labor law.

Lay-offs due to age discrimination are often unnoticeable

Employees over the age of 40 in California are protected from age discrimination under the statute. High-wage earners, on the other hand, are not a safe group. Since workers over the age of 40 are typically the most experienced and therefore paid more, it is convenient for an organization to mark an age-related termination as a financial "lay-off."

Despite the fact that baby boomers make up a sizable portion of the current workforce, many sectors and businesses have median ages that represent a much younger workforce. Is it all a fluke? Or are older employees being harassed in a quiet, unobtrusive manner? Payscale gathered some fascinating age and salary statistics focused on business and sector.

Statistics on Age Discrimination

  • Between 1990 and 2017, the number of age-related discrimination complaints filed with employers and the EEOC by employees aged 65 and up more than doubled.
  • In the workplace, 44% of workers claim they or someone they know has been subjected to age discrimination.
  • Twenty-one percent claim they've been the victim of age discrimination.
  • Since turning 40, 36% believe their age has stopped them from finding work.
  • 26 percent believe there is a chance they will lose their current job due to their age.
  • Just 40% of those who were subjected to age discrimination made a charge or lawsuit.

General Statistics

  • Outcomes

    • Discrimination based on your age may have a negative impact on your morale. You can be harassed at work because of your age, resulting in a hostile work environment. If the situation becomes unbearable, you can decide to leave your position. This can also be detrimental to the boss because it raises turnover.

  • Incidence

    • Nearly half of all staff over the age of 40 said they had been the victim of age discrimination or knew someone who had, with more than a quarter saying they had faced it themselves. Over a quarter of employees over the age of 40 believe their age puts them at risk of losing their job, and over a third believe their age has hampered their ability to find new jobs.

  • Increase in number

    • The Equal Employment Opportunity Commission claims that underreporting of age discrimination in the workplace is due to a lack of knowledge about filing procedures or fear of retaliation. Nonetheless, between 2010 and 2018, it registered a rise in allegations related to ageism. Age discrimination allegations accounted for 11% of all workplace grievances filed with the California Department of Fair Employment and Housing in 2016. Age discrimination cases had jumped to 20% of all job allegations by 2017.

Discrimination in the workplace is illegal for someone over the age of 40, according to federal law. Consultation with an employment attorney could be a successful first move if you have been the victim of workplace discrimination. They will assist you with understanding your rights and determining whether or not you have a good argument.

What Laws Have Been Enacted to Address This Issue?

Employers are prohibited from discriminating against employees based on their age when making hiring decisions. Employees, volunteers, interns, apprentices, work seekers, and contractors of employers that meet the criteria are covered under federal and state laws. The federal and state age discrimination laws are listed below.

The California Fair Employment and Housing Act (FEHA)

In California, this state statute forbids age discrimination in the workplace. It is similar to the Age Discrimination in Employment Act (below), but it addresses a broader range of issues. The Department of Fair Employment and Housing (DFEH) administers the California Fair Employment and Housing Act, which refers to employers with at least 5 workers, while the Age Discrimination in Employment Act applies to employers with 20 or more employees. Employees will use this rule to their advantage the most. It is the most common statute used by California anti-discrimination employment attorneys.

The Age Discrimination in Employment Act (ADEA)

The Age Discrimination in Employment Act (ADEA) is a federal statute that forbids discrimination based on age. It applies to workers aged 40 and over, as well as employers with at least 20 employees. Many states have age discrimination statutes that are similar to the ADEA, but they may have limited coverage. Employers with less than 20 employees, for example, can be covered by your state's statute.

Because of the employee's age, the ADEA makes it illegal for an employer to handle a 40-year-old employee differently than his or her younger coworkers. It is not enough to treat an older employee badly because of his or her age; the employer (via a manager or other decision-maker) must treat the employee badly because of his or her age. The employer is not allowed to make job-related decisions based on the employee's age. Older workers, for example, cannot be fired or laid off due to their age.

Discrimination based on age can be subtle and take many forms. Here are some examples of care that may suggest age discrimination:

  • Refusing to recruit someone who is or appears to be older than a certain age
  • Refusing to provide older workers with instruction or resources for the advancement
  • Choosing a significantly younger employee over an older employee as a promotion candidate
  • Prioritizing the firing or laying off of the company's oldest and highest-paid workers.
  • Forcing older workers to retire is a bad idea.
  • Inquiring about an employee's retirement plans or suggesting that they think about retirement
  • Using phrases like "we want a more enthusiastic employee," "we want new blood around here," or "we have/want a youthful picture at this organization" to indicate a preference for youth.

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Employers are also prohibited from firing, demoting, threatening, or otherwise retaliating against an employee who complaints about age discrimination under the ADEA and state laws. Talking to a supervisor, filing a complaint with Human Resources, filing a charge with the Equal Employment Opportunity Commission, engaging in a similar legal action, or some other forms of behavior opposing discrimination are both examples of complaining about discrimination. Even if the employee is incorrect and the behavior is not criminal, the employee can be immune from retaliation if the allegation is based on a good faith conviction that discrimination took place. A retaliation allegation is distinct from a claim of age discrimination. To put it another way, an employee may not have to show that he or she was discriminated against to prove retaliation.

The Older Workers Benefit Protection Act of 1990

The OWBPA, which revised the ADEA in 1990, provides such protections to older employees. Employers are prohibited from excluding older employees from benefits provided to younger employees under the OWBPA. Additionally, the OWBPA has some strict rules that the company must meet for workers who are 40 years old or older who are dismissed and required to sign a waiver promising not to sue their employer in return for severance pay and other benefits. In order for the waiver and release to be legal, the employer must, for example:

  • Make the waiver and release simply to read and comprehend.
  • It must expressly state that the employee is relinquishing his or her right to file a claim or lawsuit under the ADEA.
  • Before signing it, the employee must be advised to meet with an attorney.

At least 21 days must pass for the employee to consider it, and at least seven days must pass for the employee to cancel it (if the employee has signed and accepted it). If a group of workers is laid off at the same time, each employee must be given 45 days to consider their options.

Individuals who feel they have been discriminated against because of their age could find professional Employment Lawyers. If you believe you have been the victim of age discrimination, our attorneys can assist you in negotiating a settlement or other form of compensation, or we can defend you in court. Bear in mind that most employment laws have strict time limits for making lawsuits, so you should obtain legal counsel as soon as possible.

Discrimination in its Other Forms

  • Handshakes of Gold

    • As companies downsize, they can lay off employees by offering "golden handshakes," which are special packages to employees who agree to retire early. This isn't a case of prejudice based on age. It is, however, unconstitutional if it is done with the intent of excluding older employees solely because of their age and if it can be shown that there is a genuine discriminatory intent.

  • Replacing Senior Employees

    • In the event that age is a factor, it is unlawful to replace someone over 40 with someone under 40. It is also illegal to replace someone over the age of 40 with someone younger who is also over the age of 40.

    • It is not illegal to substitute people who earn a lot of money with people who would make less because they lack seniority.
    • However, this normally entails the replacement of older employees with younger ones. It is against the law if salary considerations are not the primary reason, and the employer is still looking to substitute certain older employees with younger ones. Here, the worker must confirm that it is the age of the employees, not the pay, that motivates the company to replace them.

Employer Failure to Prevent Age Discrimination

CA Govt Code 12940(k), the state's key anti-discrimination statute, states that employers must take all appropriate measures to avoid discrimination and abuse. If you believe your employer is discriminating against you because of your age, you might be right. Employers should avoid doing the following:

  • Inquire about the applicants' ages.
  • Refusing to provide benefits to an elderly employee that are available to other workers
  • Allowing a hostile workplace where younger workers bully or discriminate against older employees over the age of 40.
  • Assigning menial tasks to older workers because you believe they are incapable of handling other responsibilities

When is it acceptable to discriminate based on age?

Given the specifics/nature of the work, there are occasions when an employee is permitted to discriminate based on age. A bona fide occupational certification is what this is referred to as (BFOQ). It happens when an employer chooses applicants based on their age for the sake of protection, performance, and the employer's operations. Age limits for pilots or the compulsory retirement of some forms of physicians are two examples of true BFOQs. In California, age discrimination is illegal, and workers are covered by two separate rules. However, there are occasions when age discrimination is permissible, such as when a job's requirements, safety precautions are required, or the employer's business will be harmed.

Filing a Lawsuit for Age Discrimination

If you believe that you are being discriminated against because of your age, you should contact an Employment Lawyer before taking any action. An Employment Lawyer can assist you in determining whether or not you are being discriminated against because of your age; if so, the lawyer can assist you in collecting solid evidence of age discrimination in order to file a viable lawsuit.

  • You can file a discrimination complaint if you believe you have been discriminated against.
  • Make a list of all cases of age discrimination and write down detailed accounts of each one. Explain why you believe age motivates a particular action or behavior. Include all of your contact details, as well as that of your boss.
  • Check with coworkers to see if they've seen anything similar. Do no record important, private conversations without consent. It is against state law to record individuals without their permission or consent.
  • Consult an Age Discrimination Attorney to determine if you have a case worth pursuing. Your counsel will determine whether to file a lawsuit with the federal Equal Employment Opportunity Commission, the California state Department of Fair Employment and Housing or the Division of Labor Standards Compliance.
  • File a complaint with the Equal Employment Opportunity Commission (EEOC) or the Department of Labor and Employment (DFEH). If you can afford an Age Discrimination Attorney, he or she can take care of this for you. You will go to court after receiving a right to sue notice. You must appear in court within one year of gaining the right to sue if you file with DFEH. Finally, bear in mind that if you obtain a "power to sue" notice, you only have 90 days to file a discrimination lawsuit; if you wait for longer, you will be unable to take action against the discrimination.

Because of these statutes of limitations (as well as a number of other factors), you can consult with an Age Discrimination Attorney as soon as possible. Discrimination based on age in the workplace is unjust and can have serious implications for victims.

When Discrimination Leads to Wrongful Termination

Wrongful Termination is when an employee is fired without cause. Wrongful Termination occurs when an employer terminates an employee in a way that is in violation of the employee's contract. For example, if an employee's contract expressly specifies that he or she cannot be fired for failing to show up for work on time, but the employee has fired anyway, the Termination could be wrongful. Some of the most popular situations that result in a Wrongful Termination lawsuit are as follows:

The employee had "blown the whistle" on his or her boss. This means the employee reported to the employer for unethical labor practices such as discrimination, harassment, or workplace safety violations.

The decision to fire an employee was unfair, meaning it was made on the basis of the employee's race, gender, age, disability, or religion.

The employee was fired because he or she used his or her legal rights at work, such as taking sick leave, maternity leave, or military service.

What Does a Wrongful Termination Claim Cost?

A Wrongful Termination claim's monetary value is determined by a variety of variables. The following are some of the most common factors that influence the value of a Wrongful Termination lawsuit.

  • Wages lost

    • As part of a Wrongful Termination suit, an employee may demand damages for wages lost from the date of Termination to now. In such cases, the applicant has an obligation to minimize the loss by, for example, seeking new jobs. Any interim benefits, such as unemployment benefits or wages from a new career, are excluded from the gross pay earned in the previous year. In certain cases, particularly if you haven't been able to find a new job, you might be able to seek potential wage loss.
    • When estimating missed earnings, it's necessary to factor in the number of benefits that were lost. For example, if a terminated employee is required to pay health insurance premiums, the employer may be held liable. Other forms of benefits that could be lost include childcare, stock options, and so on.

  • Emotional distress

    • When an employee is laid off or fired from a job, he or she suffers not only financial but also emotional effects. As a result of their Termination, people also experience depression, anxiety, and other psychological problems, and they are entitled to compensation for their emotional distress. In situations where the accused employer's conduct was especially egregious, such as abuse and discrimination lawsuits, recovering reimbursement for emotional distress is even more probable.

  • Punitive Damages

    • Punitive damages are monetary penalties imposed on an employer for especially egregious conduct. Unlike compensatory damages, which are intended to compensate claimants for their injuries, punitive damages are intended to punish the employer and discourage any similar actions. To obtain punitive damages, the plaintiffs will have to meet a higher standard of evidence. The amount of punitive damages is often decided by a jury.

  • Attorneys' fees

    • You will be able to include attorneys' fees in certain cases. Many Wrongful Termination lawsuits are handled on a contingency fee basis, which ensures that your Employment Lawyer will be paid a portion of your wrongful termination settlement.

Accountability and Justice

You will be entitled to get a sense of fairness and vindication in addition to the money you win as part of the Wrongful Termination settlement. An effective settlement can provide validation and resolution for workers who have been fired as a result of abuse, prejudice, or retaliation. Any plaintiffs may seek changes in company policy as part of the settlement to avoid similar wrongdoing in the future.

Wrongful Termination cases in California are subject to a two-year statute of limitations. This clock starts ticking when the employee is fired, not when he or she receives the notification of the Termination. If you think you have a legitimate Wrongful Termination claim, you can seek details as soon as possible and contact an experienced Employment Lawyer.

If you feel you were wrongfully dismissed, it is important that you contact an experienced Employment Lawyer in your area who has successfully handled similar cases in the past. An Employment Lawyer will assist you in avoiding costly errors and guiding you through what can be a difficult task.

How Can You Prove That You Were Terminated Unfairly?

Being fired from a job has to be one of the most difficult things a person can go through in their career. It's difficult in any circumstances, but it's much more difficult when an employee believes they were wrongfully dismissed. Wrongful Termination is impossible to prove unless it is blatant, so the employee should keep as much documentation as possible and obtain adequate legal counsel from experienced Employment Lawyers.

Post-Job Assessment

The post-job assessment for the employee who believes they were wrongfully dismissed would include a summary of the problems that arose during work, and that employee will most likely have already begun building a case through documentation. The Wrongful Termination also occurs well before the employee is fired. Following a complaint about real or suspected criminal activity, an employee may note a shift in their boss's attitude. Retaliation is a form of Wrongful Termination that can be a legal issue. Discrimination is another form of Wrongful Termination.

Understanding the legal and regulatory structures of the cities and states in which they reside is something that many workers lack. Most states are "at-will," which means that an employer can fire employees without giving them a reason. Understanding the laws and regulations in force in the jurisdiction where you reside will provide you with useful information on which to base your decision.

An employee should want to inquire about the reason for their dismissal during the termination process. They should take tangible or at the very least mental notes during the meeting and write down their memories as soon as possible. During these termination sessions, many employers may refuse to offer a clear reason. Even so, an employer can talk about the issues that contributed to the Termination. In these situations, an employee can pay close attention to see if anything makes sense.

Finally, examine the notes and documents to see whether there was some evidence of racist or retaliatory conduct prior to the Termination. If a dismissed employee proved prejudice or retaliation, the dismissal could have been unjustified.

Constructive Dismissal

Constructive dismissal is a legal term that refers to actions or demands placed on you that are so incompatible with your work that they constitute a fundamental violation of your employment contract. This violation gives you the ability to behave as though you've been shot and sue for damages.

Constructive dismissal can refer to a variety of "unilateral and fundamental changes" to your contract of employment. It is widely assumed that it will lead to any of the following outcomes:

A reduction in total remuneration, such as a substantial reduction in pay or the elimination of benefit entitlement.

  • A change in the nature of the work
  • A change in the work environment
  • A change in the workplace

Other Common Elements:

  • Working Conditions That Are Intolerable or Exacerbated

    • "While there may be circumstances where an employee's decision to resign is legally unfair, 'whether conditions were so unbearable as to warrant a rational employee's decision to resign is usually a question of reality.'
    • The circumstances leading to the resignation must be sufficiently unusual and egregious to override the "natural incentive of a professional, conscientious, and rational employee to stay on the job in order to make a living and support his or her employer." The emphasis is on whether the resignation was forced rather than whether it was the employee's best choice.
    • An employee cannot just "quit and sue," alleging he was wrongfully terminated.
    • Before the circumstance is considered intolerable, the adverse working circumstances must be unusually exacerbated or constitute a continuous trend. A constructive discharge argument cannot be supported by a single insignificant or isolated act. A low-performance rating or demotion, for example, does not automatically result in a constructive discharge, even though it is followed by a pay cut.

  • Standard (Reasonable Employee) Objective

    • A constructive discharge is determined by an objective standard: if a reasonable individual faced with allegedly unreasonable employer conduct or working conditions will have no other option but to leave. (1993) 19 Cal.App.4th 201, 212; Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 212.)
    • The emphasis should be on the plaintiff's subjective reaction to the working conditions, not on the plaintiff's subjective reaction to those conditions. (Simers v. Los Angeles Times Communications, LLC, 18 Cal.App.5th 1248, 1272; Simers v. Los Angeles Times Communications, LLC, 18 Cal.App.5th 1248, 1272.)

  • Employer Purpose or Knowledge

    • The employer or a representative of the employer must have produced or been aware of the intolerable circumstances that led to the employee's forced resignation. (Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1249; Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1249.) An employer's actual knowledge of such circumstances and subsequent inability to resolve them may be used as circumstantial proof that the employee was compelled to leave on purpose. However, a plaintiff would not have to show that the employer's conduct was taken with the express intent of forcing the employee to resign.

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Other Things to Think About:

  • Acceptance of Change Should Be Avoided

    • If you fail to consider a unilateral and fundamental change in your jobs, you will be constructively dismissed. For example, you could have been constructively dismissed if you were demoted from your managerial role and then needed to report to your previous position. If you serve in the demoted position for a year without telling your boss, you might be considered to have accepted the move, making it far more difficult to prove constructive dismissal.

  • When Do You Quit/When Should You Stay?

    • Consult an Age Discrimination Attorney until deciding that you have been subjected to constructive dismissal and quitting. You have a responsibility to minimize income loss, which could include continuing to work for your employer. You could only leave if an impartial third party believed that continuing to work there would result in animosity, shame, or humiliation.
    • Finally, you run the risk of not receiving any benefits from your former employer if you leave early and later fail to establish constructive dismissal.

  • Maintain accurate records.

    • This advice applies to all constructive dismissals, but if you believe one is taking place, keep a record of any communications that address it and take detailed notes at or directly after any meetings where it is addressed.
    • If you're facing a positive dismissal as a result of a negative shift in your job, make sure to keep track of all the incidents that led up to it (i.e., the dates and parties involved with the behavior that makes your workplace intolerable).

  • Take action as soon as possible and seek advice.

    • If you believe you have been subjected to constructive dismissal, consult an Employment Lawyer as soon as possible and devise a concrete plan before taking further action. A constructive dismissal may be clearly and efficiently defined, and you can receive the payments to which you are entitled if it is handled properly.

Can I Get My Job Back?

One would wonder why someone might want their job back after the employer ended the relationship without cause. Some employees may choose to return to their previous employer because they enjoy their job, their coworkers, or the business itself. One individual does not always have the authority to tell you how you should feel about a job.

If you enjoy your work but were fired due to unfair Termination, it's important that you understand your rights. You may be wondering if you can get your job back after being fired without cause. You will be pleased to learn that there is good news for you.

  • Reinstatement is a possibility.

    • When you file a lawsuit against an employer that wrongfully fires you, a large part of the procedure revolves around monetary compensation. There are, however, other options available to you, including potential reinstatement.
    • In certain cases, the result of a Wrongful Termination lawsuit can cause you to pursue rehiring. When the cause for the Termination has not resulted in the full destruction of the working relationship, this solution is usually possible.

  • When damage is irreversible

    • When unfair Termination happens for a hostile purpose, it can jeopardize the ability to return to the same job or business. For example, if your employer fires you for refusing his or her sexual advances, you might not want to return to the same job with the same boss.
    • Your employer may have received a court order to reinstate you after a wrongful firing case, but you have the right to refuse if you believe it would result in an unpleasant workplace. If the court orders reinstatement as a remedy, it is usually up to you to decide whether or not you should get your work back.

Since California is an at-will employment society, knowing how to prove Wrongful Termination is critical. You may be unaware of what will happen next, but consulting with an Employment Lawyer will help you protect your rights as the process unfolds. Consider one of our prescreened California Lawyers in your Cal Bar Attorney Search.

Find An Age Discrimination Lawyer in California

1000Attorneys.com is a California Bar Association Certified Free Attorney Referral Service that can refer you to an experienced Employment Lawyer. We will refer you to an Age Discrimination Attorney best fit to handle your unique case. You can contact us through our 24/7 live chat (or complete our case details submission form) for a free initial consultation.