If an employer treats an individual differently regarding job employment due to their age, and especially if someone is wrongfully terminated, it is considered age discrimination and is illegal under both federal and California state law. Unfortunately, age discrimination is a common occurrence as the population and workforce of the United States grow older. However, it is not enough to simply be able to identify age discrimination, a victim must also be able to prove that age discrimination occurred in order to receive justice.
Federal and State Age Discrimination Laws
There are several federal and state laws that prohibit an employer from discriminating against an employee, or potential employee, based on their age. The Equal Employment Opportunity Commission (EEOC) enacted the Age Discrimination in Employment Act (ADEA) specifically to prevent age discrimination. In California, the Fair Employment & Housing Act prohibits many forms of discrimination, including age discrimination. Age discrimination for federal purposes starts at the age of 40. In fact, the American Association of Retired Persons (AARP) reports that over 60% of all workers over the age of 45 have either been the victim of or have seen age discrimination in action in the workplace.
In order to prove your age discrimination case under Federal Law, you must first work for an employer that is covered under the ADEA. The ADEA applies to private employers who have 20 or more employees and engage in interstate commerce. Additionally, the ADEA will also apply to public employers. In California, under the Fair Employment & Housing Act, an employer only has to have five employees, for an employee to be protected from age discrimination. If an employer meets these criteria and either refused to hire you, treated you differently with respect to compensation, employee benefits or other employment matters, or terminated your employment due to your age, you will have the foundation upon which to build your age discrimination case.
Proving Age Discrimination
There are two legal theories under which age discrimination may be proven: disparate treatment theory and disparate impact theory.
- Disparate Treatment Theory
Under the disparate treatment theory, a worker must prove that the employer intentionally discriminated against them based specifically on their age. In order to prove a disparate treatment theory, a victim must show the following:
- The employee was 40 years of age or older; and
- The employee is qualified for the position of employment; and
- The employee suffered some form of adverse employment action such as a loss of compensation, demotion, changing of the terms of employment, changing employee benefits, or firing; and
- The adverse employment action was taken under facts that point to an inference of discrimination, such as comments including during the adverse action or being replaced by a younger person with inferior experience or training.
- The employer’s substantial motivating factor in the adverse employment action was the employee’s age.
The employee must show through documentation, witness testimony, or other evidence that the reason they were given an adverse employment action by their employer was directly related to their age. The employer will be allowed the opportunity to explain how their employment decision was based on a non-discriminatory reason, and also provide evidence.
However, if the employer does not provide enough evidence regarding how the decision was based on another factor other than age, the case can move to a trial where a jury will make the determination regarding the discrimination issue. It is important to note that employers oftentimes have large legal teams that will work diligently to defend their clients. If you feel you suffered discrimination due to your age in the workplace, contact an experienced attorney to ensure that your legal rights are protected.
- Disparate Impact Theory
The disparate impact theory is different than the disparate treatment theory in the sense that it does not require that intentional discrimination related to age occurred directly from an employer. Rather, this legal theory requires that a victim prove that the employer has some form of work practice that inherently has a negative impact on older workers.
For example, if an employer has a screening test, which might be neutral in theory, that would somehow identify older employees, the results of this test could then be used at a later time regarding the determination of layoffs or RIFs (reduction in force). In order to prove a disparate treatment theory, a victim must show the following:
- A specific practice of the employer has a disparate impact on workers that are over the age of 40 for either individual workers, or a group of workers.
- The employment practice must be neutral on its face, however, it creates the possibility for disparate treatment and impact against older workers.
Employers will likely argue that the employment practice is required for safety or efficiency in some way or required as a business necessity. However, if a victim can prove that the actual result of the employment practice was age discrimination, they may be able to bring a claim in court for this injustice and to receive compensation for their losses.
Some Signs of Age Discrimination
In some cases, a worker is not sure whether the actions taken against them rise to the level of age discrimination. The following are some common signs of age discrimination in the workplace.
- Verbal harassment or verbal discrimination
- Only hiring younger employees
- Consistently overlooked for challenging work, or work that would advance your career
- Consistently being turned down for promotions, even though your work is exemplary and better than others
- Being left out of meetings or isolated within your workplace
- Your employment title is eliminated with no reasonable explanation
- You are laid off with no reasonable explanation
- You begin to receive performance improvement plans (PIP) even though your work is exemplary
Contact an Attorney Today
Age discrimination is illegal but building a strong case of age discrimination takes a great deal of investigation and evidence. Contact an experienced employment attorney who can help you understand your rights, and help you build a strong age discrimination case so that you can receive the justice you deserve. If you feel discriminated against in any way due to your age, consult with an experienced attorney at V. James DeSimone Law today.
Weird question…is there any chance that Mr. DeSimone is originally from NJ and once worked at Great Adventure?