The California Fair Employment and Housing Act (FEHA) exists to prohibit discrimination based on a variety of characteristics, including age. If an employee has been demoted, fired, denied a position, or treated unfairly because of his or her age, they may have grounds for an age discrimination lawsuit.
An aggrieved employee may bring an age discrimination claim under FEHA or the Age Discrimination in Employment Act (ADEA).The ADEA (29 U.S.C. § § 621-634) is the primary federal law that prohibits an employer from discriminating against any employee or job applicant who is at least 40 years old.
Further, the ADEA applies to all private employers with at least 20 employees, as well as federal and local governments. ADEA also applies to state governments. However, state employees are not permitted to sue them directly for age discrimination.
How does the ADEA protect me from age discrimination?
The ADEA protects all workers from age discrimination in every stage of the employment relationship, from firing to hiring, and everything in between. This includes:
- Job postings.
- Job performance evaluations.
- Job duties.
- Job training.
Finally, it’s important to know that not only does the ADEA prohibit employers from discriminating against older employees — while showing a preference for employees younger than 40 — it also forbids employers from discriminating among older workers. This means that, for example, an employer cannot choose between a 41 year old over a 51 year old because one is younger.
Which Actions Are Prohibited By The ADEA?
As mentioned, it is illegal to discriminate against an employee in all aspects of the employment process, from hiring to firing, and everything in between. It is also illegal for an employer to retaliate against any individual who opposes employment practices that serve to discriminate based on a persons’s age, or for filing an age discrimination claim, and/or participating in an investigation, proceeding, or litigation under the ADEA.
ADEA protections apply to:
- Job Postings. It is generally unlawful to include age preferences, specifications, or limitations in job postings or advertisements. A job posting may only specify an age limit when age is shown to be a bona fide occupational qualification (BFOQ) that is reasonably necessary to the normal operation of a business.
- Pre-Employment Questions. According to the ADEA, an employer is not explicitly prohibited from asking an applicant’s age or date of birth. However, these types of questions may have the adverse effect of deterring an older worker from applying for a job. Further, asking these questions may also indicate an intent to discriminate against a job applicant because of his or her age. Finally, if a job applicant’s age or date of birth is necessary for a lawful purpose, it can be requested once the employee has been hired.
- Apprenticeship Programs. In general, it is illegal for an apprenticeship program — such as a joint labor management apprenticeship program — to discriminate because of someone’s age. Age restrictions in an apprenticeship program are only valid when they fall within specific exceptions under the ADEA, or when the EEOC has granted a specific exemption.
- Benefits. The Older Workers Benefit Protection Act of 1990 (OWBPA) was introduced as an amendment to the ADEA to specifically forbid employers from denying benefits to older employees. The cost of offering benefits to older workers can be much greater than the cost of offering the same benefits to younger workers. It goes without saying that this increase in costs may create a disincentive to hire an older worker. Under some circumstances, an employer can reduce benefits based on an employee’s age, but only if the cost of providing those benefits to an older worker is not less than the cost of providing the same benefits to a younger worker.
Can I Be Fired For Reporting Age Discrimination?
FEHA offers protections for employees who are retaliated against for:
- Opposing instances of workplace harassment.
- Participating in investigations or government inquiries.
- Filing a discrimination or harassment claim.
- Opposing discrimination against other employees.
- Reporting age discrimination.
Further, an employer is forbidden from taking retaliatory action — such as reducing pay or termination — against any employee who cites discrimination or harassment violations or who files an age discrimination lawsuit.
An employer who fires an employee simply for filing an age discrimination claim is guilty of wrongful termination. An employee who is retaliated against for reporting age discrimination may be able to file a complaint with the Department Of Fair Employment and Housing or file a lawsuit against their former employee for retaliation or wrongful termination.
Can I Sue For Age Discrimination?
An employee who was discriminated against because they are over the age of 40 can sue their employer for age discrimination. Typically, an employee has to first file a complaint with the DFEH or EEOC before they may file a lawsuit in court.
A right to sue letter is a requirement before your case can be taken to court. It is possible to request a letter before going through a DFEH or EEOC investigation, but your age discrimination complaint will not be investigated by the DFEH. Proceeding to court before undergoing a DFEH investigation is only recommended if you have already retained an age discrimination lawyer.
What Can West Coast Employment Lawyers Do For You?
If you have made up your mind to take action, it is important to work with an attorney that specializes in cases like yours. The age discrimination lawyers at West Coast Employment Lawyers have extensive experience handling age discrimination cases. We will work tirelessly to gather the facts, find and interview eyewitnesses, hire experts, and fight for your rights.
We work on a contingency basis, which means we only get attorney’s fees if we are able to recover for you. Our legal team is available 24/7 and will take care of your case from start to finish. For a free no-obligation consultation with an age discriminaton attorney in California, contact our office at 213-927-3700.
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