Employers in California cannot discriminate against an individual based on their age
The Magic Number – 40
The California Fair Employment & Housing Act (“FEHA”) provides that employers with 5 or more employees cannot discriminate against an employee or job applicant over the age of 40
This means they cannot treat such an individual negatively or less favorably because of their age
Employees suing for age-based discrimination must show that their age was a substantial motivating factor in their employer’s decision to terminate their employment
There are several ways to show this (i.e. comments, statistical evidence, unfair discipline, being pushed out/forced to quit, etc.)
Examples of Being Treated Less Favorably Because of Your Age
Not being hired despite being equally or more qualified than other applicants
Not being promoted despite being equally or more qualified than other applicants
Firing or “laying-off” employees once they reach an age over 40
Note - Employees cannot use downsizing as an excuse to get rid of its older workers
Negative comments about the ages of employees
Lots of younger employees being hired while older employees are being demoted or fired
Age Based Comments and Harassment
Examples of age-related comments:
You’re getting old
You’re slow
You can’t keep up
You’re not with the times
When do you plan to retire?
Sometimes, age comments may seem harmless alone, but may constitute harassment depending on the regularity and context in which they occur
What Employees Can Do if They Feel They are Being Discriminated Against or Harassed Based on their Age
Keep a record of age-based comments
What was the comment?
Who made it?
When?
Where?
How many times?
Complain to your supervisor or manager
If your supervisor or manager was the one who made the comments, complain o upper management or someone in HR
Put your complaint(s) in writing
File a complaint with the Department of Fair Employment & Housing (“DFEH”)
Contact an attorney to determine how much time you have to file a complaint with the DFEH and/or file a lawsuit
Remember, there are deadlines and time limits in these types of cases, called statutes of limitations so it is important to take action as soon as possible so you are not barred from bringing forth your claims
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