Age Discrimination Attorney in Orange, California

All employees have the right to feel safe from discrimination and harassment. Unfortunately, workplace discrimination based on age is more common than you might think. Not only do plenty of people view older individuals in a negative light, but some employers even make hiring, promotion, benefits, and job termination decisions based on age. This is 100% illegal. 

It’s natural for an older worker to worry about discrimination in the workplace. Luckily, though, age discrimination at work is covered by the Age Discrimination Employment Act (ADEA), which was passed in 1967 as a supplement to 1964’s Civil Rights Act. The Civil Rights Act originally applied only to five “protected classes” to prevent discrimination against them at work. These classes were color, race, religion, sex, and national origin. Today, both the Civil Rights Act and the ADEA are enforced by the U.S. Equal Opportunity Employment Commission. 

In California, age discrimination—regarding individuals of age 40 or over—is covered by the Fair Employment and Housing Act (FEHA), which applies to private employers with five or more employees. The state’s Employment Development Department (EDD) offers services related to older workers and their protection in the workplace under the FEHA. 

If you believe you have been discriminated against because of your age in Orange or anywhere in California, you don’t have to go through this process alone. Contact The Guha Law Firm. We will listen to your story, piece together what has happened, and then advise you of your legal options. If the matter goes to court, our discrimination lawyer will represent you efficiently and effectively. 

What Is Age Discrimination? 

Laws at the federal and state level—the ADEA and the FEHA, respectively—make it unlawful for employers to discriminate against an employee 40 years or older. Discriminatory acts can include any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited. 

Section 623 of the ADEA lists three specific but somewhat generalized acts of discrimination by age, including: 

1. to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; 

2. to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or 

3. to reduce the wage rate of any employee in order to comply with this chapter. 

The ADEA covers not only employees on the job but also job applicants and job announcements themselves, which are not allowed to state an age requirement or cutoff age. Employers are allowed to enquire about an applicant’s age or date of birth, but the EEOC warns that this practice can deter individuals from applying. In addition, if the company relies on apprenticeship programs, they must generally avoid any age requirements unless they fall under ADEA guidelines or are approved by the EEOC. 

Age Discrimination and Harassment 

The ADEA and FEHA prohibit harassment of older workers. So, what constitutes ‘harassment’? One-time offhand comments or teasing may not rise to the level of harassment—but if the comments or conduct become so frequent as to create a hostile work environment or lead to the harassed employee facing a resulting adverse work decision, such as termination or demotion, then that rises to the level that the ADEA and FEHA prohibit.  

Harassment can come from the employer, managers and supervisors, co-workers, and even customers or clients of the business. The employer in all these cases is responsible for ending the harassment. 

Benefits to Older Workers 

In 1990, Congress recognized that providing benefits, such as health care, to older workers, can be costlier than younger workers, so it passed the Older Workers Benefit Protection Act (OWBPA). This amended the ADEA to prohibit employers from denying older workers benefits, but it allows in some circumstances a way to reduce certain benefits based on age. 

Waiver of Rights 

Probably one of the most common scenarios that strikes at the heart of the ADEA and FEHA is when an employer sees a way to lower expenses by replacing older—costlier—workers with younger, less costly, employees.  A way around this is to offer the older worker or workers a compensation package to entice them to leave on their own 

However, to do so requires the entity to have the affected employee or employees to agree to a waiver of rights. These waivers are also often used when the business is settling a discrimination claim with an employee. 

The ADEA has specific requirements for these waivers, including that they must: 

• be in writing and be understandable; 

• specifically refer to ADEA rights or claims; 

• not waive rights or claims that may arise in the future; 

• be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled; 

• advise the individual in writing to consult an attorney before signing the waiver 

The affected employee or employees must be given ample time to consider whether to accept the waiver of rights. For individuals, the time frame is a minimum of 21 days. For groups, it’s 45 days.