Signs of Age Discrimination:
10 Things to Watch For
California Law Protects Older Workers
Age discrimination or ageism in the workplace essentially penalizes a person for having more experience and qualifications than younger colleagues. Despite years of effort to build up your resume and/or loyalty, you may find yourself either gradually or aggressively being pushed out of your job in the later stages of your career. Older employees also have a more difficult time finding other work or being re-hired after losing a job.
These concerns often keep older employees from leaving even an abusive employer. California’s age discrimination laws are intended to be enforced “with the goal of not only protecting older workers as individuals, but also of protecting older workers as a group, since they face unique obstacles in the later phases of their careers.” Gov. Code, § 12941.
What is Considered Age Discrimination in the Workplace?
California and federal law protect individuals 40 years or older from age discrimination. These protections were put in place because age discrimination does not necessary just happen to individuals who are seniors. Although age discrimination in the workplace manifests itself in many ways, it generally occurs when you are treated adversely because of your age. Even if the Company hired you at a time when you were 40 years or older, you may still be affected by ageism in the workplace. If you suspect age discrimination, it’s important to start collecting evidence to help build a case to prove age discrimination. Here are commons signs of age discrimination to look out for in the workplace.
10 Common Signs of Age Discrimination
1. Harassment and Bias Towards Other Older Workers
Pay attention to whether there is a pattern of unfavorable treatment and harassment towards older employees. If senior colleagues have similar complaints about a particular manager, supervisor, Department, or Company-wide practice, the workplace may be permeated with age bias especially if Human Resources is aware of these complaints and does not intervene. Get to know these individuals and learn of their experience. They may offer you emotional support or collaboration if you find yourself in their shoes. Knowing that others like you are treated as second class or harassed, may also have a direct impact on you. Also, notice the demographics of employer’s favored “in-group” and whether there is a trend of promoting and advancing younger individuals more frequently.
2. Being Pushed (Or Forced) to Retire From Your Job
Mandatory retirement or pension plans requiring participants to retire at a specific age are generally illegal and not enforceable. An employee still desiring to work must be allowed to continue working beyond any retirement date in a pension or retirement plan. Gov. Code 12942. Some professions, however, are excluded. Although such plans expressly requiring retirement by a certain age are no longer as common, employers still try to push older folks to retire. You may get a severance offer in exchange for your resignation. Employer may comment to the effect that it is time for you to retire to essentially indicate to you that you should leave your job. To avoid a claim of wrongful termination, the employer may prefer to force you out or incentivize your exit instead of firing you.
3. Being Demoted For Younger Workers
As a preliminary manner, you have to show that at the time of your demotion you were performing your job satisfactorily. Relevant evidence may include but is not limited to bonuses, raises, performance metrics, performance reviews, and even informal feedback and any other accolades applicable to your industry. Further relevant evidence includes showing that after you were demoted, you were replaced by a substantially younger employee. Employees 40 years or older are protected from age discrimination. However, even if you are replaced by another older employee also 40 years or older, if there is still a significant age differential (e.g., 55 year old replaced by a 45 year old), then you may still have a claim of age discrimination.
4. Denied Promotion Given to Younger Employees
Similarly, if you are performing satisfactorily and are qualified for the promotion, an employer’s decision to promote a substantially younger individual who lacks same experience and qualifications may indicate age bias. An employer may come up with pretextual reasons or superfluous consideration for its decision to hide its age bias. The fact that you are still employed does not necessarily mean that ageism was not a factor. An employer may be happy to receive the benefit of your experience and hard work while preferring to elevate younger colleagues.
5. Lower Salary than Younger Counterparts
It is illegal to pay an older worker less for substantially similar work. All types of compensation must be considered including salary, bonuses, overtime, profit sharing, stock options, etc. Furthermore, the “use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group.” Gov. Code, § 12941. Whether you are being paid less for substantially similar work than a younger counterpart, does not depend on your respective job titles. The actual responsibilities is what matters. Another indicator of disparate treatment in terms of compensation may be shown by the fact that you are getting less overtime hours than a younger counterpart or denied assignments to coveted accounts, territories, or clients that would lead to higher commissions or bonuses. These are just some examples.
6. Performance Reviews Suddenly Start Dropping Despite Good Performance
Performance reviews have an impact on your career trajectory. Employers looking to hold older, qualified workers back or to push them out of a job or justify an adverse action (demotion, refusal to promote, or termination) motivated by bias may use undeserved, negative criticisms to ultimately build a case to justify your termination or exclusion from opportunities.
7. Older Workers are Fired and Younger Workers Hired
Replacing an employee (who performed satisfactorily) with a substantially younger employee may give rise to an inference of age discrimination that an employer may have to rebut. Also, pay attention to whether there is a pattern of pushing out older workers including layoffs or reorganizations that disproportionally impact older workers.
8. Ageist Comments in the Workplace
Just as with racism, you may face direct ageist comments (e.g., “you’re too old”) or indirect insults that likewise reflect bias. For example, insinuations that you should retire or you are incapable of doing the work because you’re outdated may be a red flag. Younger individuals are often simply perceived to be “up to date” or more capable of navigating recent changes in technology or other media. Comments on your appearance and/or desire for the face of the Company to be “young” may also be indicators of ageism.
9. Social Isolation
Depending on your industry, social isolation can have a negative impact on your career. Employers, managers, executives, or even co-workers preferring to work with younger colleagues, may exclude more experienced counterparts from meetings, trainings, and even important conversations. Thus, withholding necessary information and tools to excel in the workplace.
10. Unfair Discipline
Sometimes mistakes at work happen to the best of us. Be mindful of whether you are treated fairly in terms of discipline. For an older worker a small mishap may be trumped up into a terminable offense, whereas the same mistake by a younger colleague may result in lower level discipline or a warning. In this context, if an employer is making a mountain out of a molehill, it may be a sign of ageism.
There may be one or more signs of age discrimination in your workplace. Herein is not an exhaustive list. Ultimately, the context and totality of events have to be considered.
Age Discrimination Leads to Damages
A victim of age discrimination has to also show damages as a consequence of illegal ageism. Straight damages may be evident by loss of employment leading to loss of salary and benefits. But even before loss of employment, you may be suffering from an emotional toll of age-related harassment and loss of promotion and other employment opportunities.
Age Discrimination FAQs
Can an employer ask my age during a job interview?
Generally, an employer cannot inquire about your age during your job interview unless there is a legitimate age requirement for the job; for example, if the job requires you to serve alcohol.
Can age discrimination occur during the interview process?
Yes and unfortunately, it often does. Consider were you qualified for the role? Was a younger person hired instead who was not as qualified? You may be able to gather these details from LinkedIn. Were there any other indicators of age related bias? For example, did the employer express concerns that you might retire early.
How hard is it to prove age discrimination?
There is no one fits all answer to this question. Whether your case is easier or more difficult to prove depends on your individual facts and direct and circumstantial evidence that may be obtained. An age discrimination attorney can help you identify relevant evidence needed to prove your claim. While some incidents on their own may not be enough, when combined with other evidence or presented in the relevant context in conjunction with totality of events may add up to a stronger case. We offer free consultations to help you evaluate your legal options moving forward.
What can I do if I have been discriminated against because of my age?
Gather and preserve relevant records, communications, and other evidence that may be useful to you. Reach out to colleagues for support and collaboration. There is no need to wait to speak to an attorney to learn about your rights until you are fired. If you see the writing on the wall and are being threatened with termination, you should seek guidance on your legal rights.
How long do I have to file an age discrimination claim?
Before you can file an age discrimination claim, you must file a Complaint with the Department of Fair Employment and Housing and obtain a Right-to-Sue Letter. Recently, California has extended the deadline to do so giving employees up to three years exhaust these requirements. Thereafter, you have to file an age discrimination lawsuit within a year. Despite these generous deadlines, we highly recommend that you begin to pursue your claims at your earliest opportunity.
Speak to an Experienced Los Angeles Age Discrimination Attorney
We specialize in employees’ legal rights under the state of California to work without experiencing age discrimination. We are dedicated to helping people like you gain the protection they deserve under California law for fair and unequal treatment. Call our office today for a free consultation.