What Is Age Discrimination? How Can I Fight It?
May 4, 2020 at 7:00 AM
by Julian Burns King
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What Is Age discrimination?

Both state and federal law prohibit discrimination against workers over 40 years old. Nonetheless, an AARP survey found that over three-fifths of older workers reported experiencing age discrimination in the workplace. Almost a quarter of workers over age 45 reported being harassed with negative comments about their age by co-workers or supervisors. As the number of older workers continues to grow, age discrimination becomes an increasingly serious barrier to economic justice.

So what exactly qualifies as “age discrimination”? To prove discrimination, a plaintiff must show that they suffered an “adverse employment action”—a termination, demotion, layoff, furlough, etc.—because of their age. A plaintiff can prove that the adverse employment action was “because of” age by pointing to circumstantial evidence of discrimination, including:

  • Comments about age, such as repeated references to retirement, getting old, or the age of younger workers
  • A pattern of firing, laying off, furloughing, demoting, etc. older workers, while hiring or retaining younger workers
  • Comments about “culture” and “fit” or “energy,” which are often used as codewords to hide age or disability discrimination and prioritize young, work-around-the-clock go-getters
  • Suspicious timing relating to the adverse employment action, for instance, a termination just months before a long-term employee is eligible to receive a pension or other benefits

These are just examples of the types of evidence that can be used to prove age discrimination.

Age discrimination in the context of mass layoffs or reductions in force

A reduction in force (“RIF”), also known as a “mass layoff,” is an employer’s decision to terminate a group of employees in order to cut costs or reorganize. Mass layoffs are generally legal, provided your employer complies with any notice requirements under separate laws governing mass layoffs. However, employers sometimes use mass layoffs as a convenient excuse to terminate older or disabled workers.

To show that an employer has discriminated against older or disabled workers in conducting a mass layoff, an employee can rely on a variety of evidence, including comments by managers or a statistical imbalance between workers who were terminated and workers who were not. For instance, if a mass layoff causes the average age of the workforce to drop by 10 years, this can be evidence that the employer discriminated against older workers in conducting the mass layoffs.

If your employer is conducting a mass layoff and offering a severance to older workers that requires them to waive their age discrimination claims, they are required to provide a disclosure under the Older Workers Benefits Protection Act (“OWBPA”) listing:

  • The job titles and ages of all workers who were terminated as part of the mass layoff
  • The job titles and ages of all workers in the workgroup who were not selected for the mass layoff

If you have received a severance offer and an OWBPA disclosure, we recommend that you contact an attorney to review the severance and disclosure to evaluate whether age discrimination played a role in the layoff. If so, you may have a claim for age discrimination and wrongful termination.

Age discrimination verdicts & settlements

Juries and judges often recognize that age discrimination is particularly harmful to those who encounter it. Not only are older workers more likely to be laid off or terminated, but they are also less likely to find reemployment, meaning that they often suffer significant economic harm as they are nearing retirement. Moreover, juries and judges recognize that it is unfair to penalize someone who dedicated themselves to a long and productive career with an employer. Recent age discrimination verdicts in California can exceed $5 million, showing that juries consider the serious injustice of terminating loyal workers because of their age.

Talk To Us

King & Siegel LLP has significant experience litigating contested age discrimination cases on behalf of our clients. We understand that these cases are particularly high stakes; many clients support families, have children in college, rely on their employer-provided insurance, and fear to reenter a stormy job market that is often hostile to older job seekers. We are here to help you get justice. If you believe you may be a victim of age discrimination, contact us today to schedule a free consultation.

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