How to Prove Age Discrimination in the Workplace

How to Prove Age Discrimination in the Workplace

California law provides important protections for employees and applicants older than 40. Age discrimination in the workplace has been around as long as any other form of discrimination, but it's harder to prove. This particular type of discrimination is usually more subtle than other forms of discrimination. Additionally, older workers may hesitate to report what happened to them, not realize they're experiencing discrimination, or fear the repercussions of reporting the offense. However, these aren't the only difficulties associated with age discrimination claims; age discrimination can also be challenging to recognize.

Employers are Prohibited from Engaging in Age Discrimination

Age discrimination occurs when an employee or a job applicant is treated less favorably due to being 40 years of age or older. While not all forms of age discrimination are legally prohibited, in many cases, California employers are legally prohibited from engaging in age discrimination.

Age Discrimination in California Workplaces Isn't Always Obvious:

Age discrimination can take many shapes - sometimes it is obvious, but sometimes this type of discrimination is more subtle. It's essential to be aware of all the various forms age discrimination can take and how an employer may be harassing or discriminating against their older workforce.

Different Forms of Age Discrimination in California Workplaces:

  • They refuse to hire older employees/job applicants (even if they are equally qualified or more qualified than other candidates).
  • They are refusing to promote an employee based on their age.
  • They are firing an employee based on their age.
  • They are harassing someone in the workplace based on their age.

Age Discrimination is Unlawful:

Generally speaking, it is illegal for California employers to engage in age discrimination. Discriminating against employees 40 years of age or older, based on their age. Specifically, it is unlawful for California employers to discriminate against employees 40 years old or older, based on their age, in connection to:

  • Pay scales or overall compensation
  • Terms of employment
  • Conditions in the workplace
  • Job duties or assignments

Age Discrimination is Prohibited at All Stages of the Employment Process:

Employers are prohibited from taking adverse employment actions based on age - at all stages of the employment process. Consider some examples of what age discrimination looks like at different stages of the employment process:

Recruitment: If the company's recruiting materials state a specific age as preferable before accepting applications for a job opening, this is age discrimination.

Hiring: During the hiring process, if a job applicant is denied or mistreated based on age, this is age discrimination.

Employment: If an employee is given specific assignments or job duties because they are older (age 40+), this could be age discrimination.

Career Opportunities: If an employee is denied opportunities for additional training or if a company sets age limits for training programs, these practices are age discrimination.

Promotion: Being overlooked for promotion or raises in pay based on age is age discrimination.

Retirement: Being denied access to retirement benefits based on age is age discrimination.

How to Prove Age Discrimination in the Workplace:

1. Show that the employer was an entity covered by applicable age discrimination laws,

2. show that the employer or job applicant was at least 40 years old,

3. show that the worker or job applicant experienced adverse effects due to employment action, and

4. show that the employer took the employment action based on the job applicant or employee's age.

What Kind of Evidence is Best When Trying to Prove an Age Discrimination Claim:

Direct evidence is best when attempting to prove an age discrimination claim, but it is harder to obtain since employers want to protect their interests. When building an age discrimination claim against your employer:

  • Write things down
  • Save emails
  • Store texts
  • Save voicemails
  • Save company communications
  • Take note of wrongful discipline (if you are punished for minor missteps at work while other workers are not disciplined for the same or similar offenses)
  • Take note of consistent offensive, derogatory comments or other communications made about your age
  • Take note of exclusion from company events, conferences, lunches, training programs, or meetings

For example, if your supervisor pulls you aside and asks you if you are planning to retire soon and then makes a joke about how exhausted you must be at your age, take the time to note the interaction. Collect all the information and store it in a safe place outside the office. Similar adverse employment actions taken during the recruitment, hiring, promotion, or firing stages can also constitute age discrimination. If you suspect you are being subjected to age discrimination in the workplace, request that your employer provide you with a performance evaluation and hold onto the documentation when it's complete.

Harassing Employees in the Workplace Based on Age:

Regular harassment of employees in the workforce based on their age can constitute age discrimination in violation of federal and state employment laws. Harassment is illegal when it is frequent or severe enough to create a hostile workplace or when it results in the employer taking adverse employment action against the employee being harassed. The difference with harassment-based age discrimination claims is that the employee is not required to be damaged or harmed by the harassment. However, isolated incidents of age-based harassment (that aren't very serious) or simple teasing don't constitute a violation of employment law.

If you need to discuss filing a California age discrimination lawsuit or have questions about how to report illegal activities in the workplace, get in touch with Moss Bollinger, Sherman Oaks, California employment law attorney. He's dedicated to protecting and asserting the rights of his clients. Call 866-942-7974 today for a free consultation or contact us online.

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