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In California, the Federal Age Discrimination in Employment Act (ADEA), and the California Fair Employment and Housing Act (FEHA), prohibit an employer from discriminating against an employee because of their age (40 or over).  The age discrimination laws protect an employee who is 40 years old, or older, from discrimination as to the terms, conditions, or privileges of their employment.  This means other than for a few exceptions, employees who are 40 years old, or older, cannot be terminated, denied promotion, not hired, paid less, denied training, denied a raise, demoted, or laid off because an employer thinks they are too old.  However, it is important to understand that the ADEA and FEHA do not protect younger employees, who are under the age of 40 years old, from age discrimination because they are younger, or when older employees are being given preferences because they are older. A common scenario for age discrimination to occur is when a manager holds negative stereotypes about older employees.  Some negative stereotypes a manger may hold include: (1) older employees do not learn new things as well as younger employees, (2) older employees are going to miss more work because of health issues, compared to younger employees, or (3) older employees are more resistant to changes in work practices, as compared to younger employees. When negative stereotypes against older employees negatively impact employment decisions regarding termination, raises, promotions, layoffs, etc., then the older employees’ rights have been violated. Employees in California generally prefer to use FEHA when filing a suit for age discrimination against a business, rather than the ADEA, because of the broader remedies that are available to plaintiffs under California law.

Methods to Prove Age Discrimination

In order to prevail in an age discrimination lawsuit against an employer, the employee must prove that a substantial, motivating factor for the discrimination that caused them harm, like a termination, was the employee’s age (being 40 or over).  An employee can prove unlawful discrimination with either direct or circumstantial evidence.  If an employer states that an employee is being fired because they are too old, this would be direct evidence of age discrimination.  Direct evidence shows discriminatory animus by an employer without inference or presumption.  For example, a statement by a supervisor that older employees cannot learn new things as fast as younger employees, is direct evidence of discriminatory animus by that supervisor, which can be used to prove age discrimination. Direct evidence is usually hard to find, when trying to prove an unlawful discrimination case, because most employers are smart enough to hide their illegal biases.  However, circumstantial evidence can also be used to prove unlawful discrimination.  For example, at a trial about an illegal discharge, a wrongful termination lawyer may present multiple facts to a jury, which infer that an employee’s age motivated their termination.  Circumstantial evidence to show age discrimination, generally includes some type of comparative evidence, which shows older employees being treated differently than younger employees in similar circumstances.  Things like older employees being disciplined for things that younger employees were not; more experienced older employeesbeing replaced with younger less experienced employees; or older employees being told that their job is being eliminated, while at the same time younger employees are being hired to perform the employee’s same duties, all are examples of circumstantial evidence that can show age discrimination.

Statistical Evidence Can Prove Age Discrimination

Statistics can be used to show age discrimination in the workplace.  To create an inference of age discrimination, the data must show a statistically significant disparity between younger and older employees in the relevant group.  For example, evidence that only older employees are being chosen for a layoff, and not younger employees, could be strong evidence of age discrimination if the statistical disparity was substantial enough.Furthermore, statistics may show a broad pattern of discriminatory practices by the employer, which can be used to create an inference of age bias by management.

Proving Age Discrimination by Disparate Impact

In California, FEHA protects older employees from age discrimination, not only as individuals, but also as a group.  An employer in California can be liable for age discrimination because of a policy or practice’s disparate impact on older employees as a group.  This means that even if a policy or practice is neutral on its face, as to age, if application of the practice or policy has a discriminatory effect on older employees, the employer may be found liable for age discrimination under a disparate impact legal theory.  For example, choosing employees for layoff, from a group of employees with the same type of job, because they are paid the highest salaries, may result in laying off mostly older employees.  It would be common for the highest paid employees with a similar job, to be the employees with the most seniority.  Further, employees with the most seniority are most likely to be older.  If the use of a criterion for a layoff adversely impacts older employees as a group, using such a criterion could be unlawful age discrimination in violation of FEHA.
Mandatory Retirement Plans Can Violate FEHA
In California, retirement plans or pensions, which require an employee to retire at a certain age are generally unenforceable.  With some exceptions, most employees in California who desire to continue to work beyond a retirement date contained in a private pension or retirement plan, cannot legally be forced to retire.  Under most circumstances, when an employee who is 40 years old, or older, is involuntarily terminated because of their age, it violates FEHA.
Cummings & Franck, P.C. Has Experienced Employment Attorneys
Cummings & Franck, P.C. has a team of experienced attorneys who are experienced in proving age discrimination cases.  Call us for free information about your employee rights.