Generally, discriminating on the basis of age in the workplace is illegal under both the Federal Age Discrimination in Employment Act (ADEA), and the California Fair Employment and Housing Act (FEHA).
Under both laws, there are some special limitations on who can sue. (For general limitations on who can sue and be sued, see California Fair Employment & Housing Act.)
People under forty years old are not protected by age discrimination in the workplace laws. If an employer refuses to hire somebody because he or she is thirty-nine, and therefore "too young", that is not illegal. But if it because he or she is forty and "too old", that is illegal.
Age discrimination has some special aspects that make it different from other types of employment discrimination. A few of these are discussed below.
Golden Handshakes
Sometimes when employers are down-sizing, they lay people off by offering "golden handshakes", which are special packages to employees who agree to take early retirement. This is not age discrimination. However, if it is being done for the purpose of getting rid of older workers just because of their age, and if it can be shown that there is a real discriminatory motive, that is illegal.
Replacing Older Workers
It is illegal to replace a person over 40 with a person under 40, if age is the reason. It is also illegal to replace a person over forty with a younger person who is also forty.
Older Worker's Benefit Protection Act
The Older Worker's Benefit Protection Act provides protection of benefits or benefit packages for older workers. According to the act, an employer must provide equal benefits for older workers as they do for their younger counterparts. An employer can accomplish this by either providing packages that are equal in benefit or by spending the same amount of money on each person. An individual cannot waive his right under this act, unless that waiver is knowing and voluntary.
Replacing Higher Earners and Age Discrimination in the Workplace
It is not illegal to replace people who are making high wages with people who will make less because they have less seniority.
However, this usually means replacing older workers with younger ones. If the wage considerations are not the real motivator, and the employer is actually trying to replace older workers with younger ones, that it illegal. Here, the employee must prove that it is the age, not the wages, which is motivating the employer to fire the older workers.
At the law offices of Lipow & Harris, we take great pride in fighting for the rights of those who have been discriminated against in the workplace. If you believe you have been the victim of workplace discrimination on the basis of your sex, disability, race, religion, national origin, sexual orientation or age, contact our discrimination attorneys in Encino, Los Angeles at (818) 905-7868 for a free consultation.
