California Age Discrimination Attorney
It is illegal under both the Federal Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act (FEHA) to discriminate against an employee or job applicant because of their age in the terms or conditions of employment, including their salary, hours, vacations or promotions.
However, both Federal and State laws provide limitations on who can sue. The affected employee must be 40 years old or older. So, for example, if you were thirty-nine years old and had been denied a position of employment because the employer wanted someone older than you, you could not sue under these laws for age discrimination. But, if you were forty years old and the same employer denied you a position of employment because you were “too old,” that would be illegal.
Sometimes, what appears to be age “discrimination” may not be illegal. For example, “down-sizing” when employers reduce their work force or by offering so-called “golden handshakes” or special incentives to employees who agree to take early retirement. This practice is not illegal unless it is done for the purpose of eliminating older employees. Where it can be shown that the employer’s motive in down-sizing was to have a younger workforce, then that could be considered age discrimination and illegal.
It is important to note that the mere act of an employer replacing older employees with younger ones is not necessarily “age discrimination,” and therefore illegal. The question as to whether an employer has engaged in age discrimination can usually be answered by examining their motive. For example, where any employer replaces an employee who is over forty years old by hiring an individual who is under forty and the employer’s motivation was based on age, that could be illegal. In some cases, replacing the employee with a person over forty may even be illegal.
It is not necessarily illegal to replace older employees who are being paid higher wages with new younger employees who will work for less; that is where the employer’s motivation is based on wage considerations alone. However, where an employer is replacing older employees with younger ones and the wage considerations are merely a pretext for eliminating employees because they are “too old,” that would be illegal. It could also be illegal when the use of salary criterion, adversely affects older employees as a group.