Labor and Employment Law - Age Discrimination

It is illegal under both the federal Age Discrimination in Employment Act (ADEA), and the California Fair Employment and Housing Act (FEHA) to discriminate on the basis of age in the "terms or conditions of employment". This could include salary, benefits, hours, vacations or promotions.

However, both of these laws provide some special 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 is not necessarily illegal unless it is being done for the purpose of eliminating the older employees from the work force. However, where it can be shown that the employer’s motive in down-sizing was discriminatory in nature, then that would be considered age discrimination, and therefore 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 would be illegal. In some cases, replacing with a worker over 40 may even be illegal.

It is not 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. 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.

Age discrimination can be difficult to prove, which is why we recommend if you are over the age of forty and believe you have been discriminated against because of your age that you contact us for a consultation.