The concept of workplace age discrimination is relatively straightforward: it can be loosely defined as the unfair treatment of an employee based upon his or her age rather than their professional merits. Legal definitions and the corresponding protections offered to employees over the age of 40 are far more complex than what overall society perceives as age discrimination. The following Q&A will provide information about the available federal and state statutory protections against age discrimination, and will identify several subtle indicators that have been found to evidence ageism in the workplace.
Who Is Protected From Workplace Age Discrimination?
The most important piece of age discrimination legislation in the United States is the 1967 Age Discrimination in Employment Act. (ADEA) This bill defines anyone over the age of 40 as a member of a “protected class,” and provides that no one may be treated unfairly because they are members of that protected class. California, by way of the Fair Employment & Housing Act (“FEHA”), has fortunately expanded upon the protections established by the ADEA. Both acts apply to current employees as well as prospective job candidates.
What Exactly Do Workplace Age Discrimination Laws Prohibit?
FEHA makes it illegal for employers to refuse to hire, discharge, or otherwise discriminate against an individual, with respect to compensation or other terms of employment, because of their age or numerous other protected classes. (California Government Code section 12940[a]). Limiting, segregating, or classifying employees in any way that might adversely affect their professional lives is additionally prohibited.
What Are Some Subtle Examples of Workplace Age Discrimination?
Though some employers may have openly discriminatory policies, the majority of age discrimination cases revolve around more subtle or indirect forms of workplace injustice. Here are a few examples that you should be aware of:
- Company policies that disproportionately affect older employees, such as a recruitment program that implies younger workers are preferred, or an aggressive early-retirement buyout program.
- Hiring a younger job applicant over a more qualified older employee because of their age;
- Denying older workers training or educational classes frequently offered to employees under 40;
- Denying a promotion to an older worker, and hiring a younger person to fill the position;
- Interviewers prying for information regarding your birthdate or graduation year. Though it is not illegal for employers to request this information, the fact that such data is requested early on in the employment process may raise red flags.
- Employers who allow their workplace to foster a hostile environment toward elderly employees. Examples of such conduct include offensive jokes and/or discussing or making business decisions at after-hours functions or establishments when the older employee is not invited or dissuaded from attending.
- Employers who assign boring, unimportant, or otherwise undesirable tasks to elderly employees, or who refuse to allow elderly employees to interact with the public.
- Company policy that dictates a fixed retirement age, unless this is in accordance with the exceptions discussed below.
Are there Exceptions to Workplace Age Discrimination Laws?
Broadly speaking, there are two major exceptions to age discrimination laws: bona fide occupational qualifications, and organizations not covered by the ADEA. The first exception refers to job positions that have a legitimate reason for age discrimination. The employer must have a reasonable belief that the age limitation is necessary for the worker to perform the critical functions of the job adequately or safely. The second exception, at least for purposes of the ADEA, involves business with fewer than 20 employees. Fortunately, California, by way of FEHA, has expanded the prohibition on age discrimination to all employers with five or more employees.
What Should I Do If I Suspect that I Am a Victim of Workplace Age Discrimination?
There are many options for individuals who believe that they are victims of age discrimination that include reporting the incident to human resources, the appropriate governmental agency, and/or filing a civil action. An age discrimination lawsuit may be the best way of keeping your job, gaining reinstatement, monetary compensation, and/or more favorable terms in a severance package. Visit Perrin Law Group online or call us today for a free consultation to learn more about whether or not you have a viable claim against a current or former employer.