This blog post will analyze the importance of the law against age discrimination in employment and how it affects the legality of paid rest break regulations. Age discrimination has been a significant topic of concern and debate for societies across the world in recent years. Many governments have adopted laws that prohibit workplace discrimination on the basis of age in order to protect the fundamental right of all citizens, regardless of age, to work in a safe and respected environment.
As such, these existing laws need to be considered when examining the legality of certain regulations, such as paid rest breaks for employees. To truly appreciate the impact of the law against age discrimination in employment, it is necessary to first understand the challenges faced by people of older age in the workplace.
Most commonly, age discrimination in the workplace is seen in the form of demotion, isolation, or a decrease in the level of responsibilities assigned. It can also encompass more subtle forms of discrimination, such as giving preferential treatment to younger employees, overlooking an older employee for promotion, or reducing pay for an older employee. These practices can lead to a feeling of marginalization for those of a more advanced age and can lead to deep-rooted psychological issues that can continue to impact the individual even after they have left the workplace.
Age Discrimination Act: The Older Workers Benefit Protection Act
California’s age discrimination in employment laws: what do they prohibit? We’re going to look at that and more in this article. Let’s look at the laws that apply to age discrimination. First is the California statute, the California Fair Employment and Housing Act Section 12940(a), which is the main age discrimination law in California.
It says that it’s an unlawful employment practice for any employer to take adverse action against an employee due to his or her age. Now there’s also a federal law, the Age Discrimination in Employment Act. But here in California, employment lawyers like myself almost always sue under the state statute because it’s more powerful. Now, what people often hear about is the Older Workers Benefit Protection Act.
For purposes of this video, that comes into play largely when dealing with settlement agreements or severance agreements when our clients are over the age of 40. In essence, it builds certain protections into contracts. It says that there must be a certain amount of time for people over the age of 40 to evaluate that agreement after they’ve signed it and rescind it if they so choose. But largely, we’re not going to talk too much about that.
Discrimination in Age-Related Employment Law: Is the Reason the Employer Was Hiring?
Okay, what is discrimination? What does it look like? First and foremost, again, California law says it’s unlawful for any employer to take adverse action against an employee due to his or her age. That’s generally referring to terminations and hirings: failure to hire somebody because they’re older; firing somebody because they’re older. That’s against the law.
Now, this law primarily applies to people over the age of 40. So, if you’re 39 years old and you want to file an age discrimination lawsuit, it’s going to be pretty tough. What’s really important with age discrimination lawsuits is that the substantial motivating reason for the termination be age. And I bring that up for a very specific reason. Oftentimes, people who are filing age discrimination lawsuits have worked at a company for a long time.
And when the employer fires them, they say, “Oh, the reason we’re firing you is because you missed filing this document.” Or “You missed this deadline,” or whatever—things that actually happened. Now, what we have to prove in an age discrimination lawsuit is that the substantial motivating reason for your termination was age. There can be other legitimate reasons for your termination, but if the main reason for your termination was your age, the law has been violated.
Finally, you know how to know: what kind of evidence are you looking for in an age discrimination lawsuit? Obviously, she comments, “Okay, when are you going to retire?” – hint-hint-nudge-nudge. “You’re getting kind of slow here at this place, and this is a fast-paced environment. Are you sure you can keep up?” Those types of comments from supervisors to employees who are working really diligently indicate to them that age might be playing a part. Also, take a peek at the age demographic of the workforce. If everybody at that company is 26 or under and you’re 64 and you get fired for no reason, it might be worth your while to contact a lawyer to see if you have a case.
Harassment and Discrimination: Age Harassment and Hostile Work Environments
Now that we know what age discrimination looks like, let’s look at age harassment. Harassment is under the same statute (12940) and is distinguished from discrimination, where a company is firing or failing to hire somebody because of their age. Here’s where they’re treating somebody poorly because of their age: So, you can think about the mean comments that are being made to the employee: “You’re the old guy!” or “You’re the old girl.” Or “You’re getting slow here; you can’t keep up with us anymore.” Hint-hint-nudge-nudge: “When are you going to retire?” Insults due to somebody’s age, etc.
This is where somebody’s really being pummeled with evil comments, and they all revolve around his or her age. Very important. Now, it can’t just be one comment or two. It’s got to transform the working environment into an abusive working environment. We call it a hostile work environment. That’s a legal standard. I’ve made an entire video about harassment and hostile work environments. And what’s really important in age discrimination cases is that the harassment be severe or pervasive. “Pervasive” means it shouldn’t just happen once; it’s got to happen over and over again. And “severe” means that on some type of objective standard, it’s got to be severe.
When people understand who you are as the plaintiff and the comments that were made to you—or the things that were done to you—they need to see that this is extremely severe. I’ll give you one example of severity. I handled a case a couple years ago where my client had plastic bags put over her head and a rope wrapped around her neck. They called her the old lady. It was a terrible, hostile work environment, which is, in large part, due to her age. Now, not all cases are that extreme, but that really highlights that harassment cases need to be severe. Most people know when they’re being harassed or discriminated against due to their age. But what kinds of cases do we employment lawyers see frequently? We frequently see “young blood” type hiring policies where a hiring manager, HR, CEO, or whatever has some kind of unofficial policy to only hire young people. And we often see that proven out in emails and text messages in our cases. We also see, especially at larger employers, the phasing out of the more expensive employees, which usually indicates the older employees.
Now, firing somebody because they’re too expensive or laying somebody off because they’re too expensive is perfectly legal. But if the substantial motivating reason for that layoff or that termination is the person’s age, that’s very indicative of the fact that phasing out the expensive workers is actually a ruse for age discrimination. We also very frequently see companies terminating “slow” employees or people who can’t keep up anymore. Hint-hint, nudge-nudge, “When are you going to retire, Bob?” “Oh, you should have retired multiple years ago.” Or, “You just can’t keep up anymore; the young people go a lot faster.” Comments like that are very common. And it kind of bleeds right into the next one, which is harassment-type comments.
You know, calling somebody the “old lady” or “grandma” or “grandpa” at the workplace is obviously not appropriate, and if it gets severe or pervasive, it turns into an abusive working environment. Those are the very common cases that we employment lawyers see on a daily basis. If you’re a victim of age discrimination, what should you do? Should you file a lawsuit? Is it even worth the aggravation of going through a lawsuit? Well, let’s look at the three main types of remedies, and you might be able to sort of picture First and foremost, if you win an age discrimination lawsuit, you’re entitled to get back your economic damages. If you were working at a company making a hundred thousand dollars a year and then you were fired due to your age, you’re not making a hundred thousand dollars a year anymore.
That’s a very tangible economic loss that the jury can measure. Number two: emotional distress damages If you are fired or harassed because of your age, oftentimes the emotional impact is devastating. The pain and suffering damages in these types of cases can be astronomical and are often much larger than the economic damages. Number three: if you prove your case with malice, oppression, or fraud, you can win punitive damages. Those are damages meant to punish the defendant for never engaging in the same type of conduct again.
Okay, what does that mean? How much can I get? Well, we employment lawyers hate that how much?” question because, at the end of the day, we don’t know. These cases are not only vastly different from one to the next, but we can’t make averages because 99% of cases settle, and those settlements are confidential. So, we don’t have statistics to rely on to give you a ballpark figure. But I can only say this if you’re able to find a good employment lawyer. If you trust someone who’s going to invest his or her time, money, and, most importantly, energy into your case, you’re more than likely to be satisfied with the financial outcome of your case. I hope this video has been helpful. Take care.