Age Discrimination

Age discrimination is when your employer treats you less favorably or takes some other adverse employment action against you due to your age. Almost every state has enacted some law that protects employees from age discrimination on top of the federal law in place.

Under federal law, the Age Discrimination in Employment Act of 1967 (ADEA) protects applicants aged 40 and over from discrimination in all aspects of employment.

The ADEA does NOT apply to:

• Employers with less than 20 employees
• Independent contractors
• Elected officials
• Military personnel

The ADEA does apply to:

• Employers with at least 20 employees
• Employment agencies
• The federal government
• State and local government (though remedies are often limited)
• Labor organizations with at least 25 members

Under the ADEA, it is unlawful for employers to fail or refuse to hire, to discharge, or to otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of that person’s age. Further, it is also unlawful for an employer to harass an employee on the basis of their age. For example, if an employer repeatedly and pervasively makes offensive and derogatory comments about an employee’s age in order to get him or her to quit, then Age Discrimination is likely to have occurred.

Similar to federal law, California’s Fair Employment and Housing Act (FEHA) affords some of the same protections as the federal Age Discrimination in Employment Act of 1967. However, FEHA affords stronger protection to employees because employers with a minimum of 5 employees are covered under FEHA, whereas under the ADEA, only employers with a minimum of 20 employees are covered.

Age Discrimination cases are very tricky as there is rarely a “smoking gun” that definitively proves that it occurred. It is important to have representation to navigate your way through age discrimination laws. Proving age discrimination is no easy feat as employers rarely explicitly say that the reasons for the decisions they make are based on the employee’s age. Therefore, the proof needed to win an Age Discrimination case is usually circumstantial at best. However, there are some things employers can do proactively to assist their lawyer in proving that they were discriminated against based on your age.