Age Discrimination at Work

Age Discrimination at Work

A. Is Age Discrimination Becoming More Common?

Age discrimination has emerged as a critical issue for several reasons, key among them being the aging demographic of the workforce not just in California, but nationally. The average age of the population has increased over the last 10-15 years, a trend driven by longer life expectancies and the aging of the Baby Boomer generation. This shift has significant implications for the labor market, as a larger proportion of the workforce now comprises older individuals. The U.S. Census Bureau data supports this demographic transition, indicating a noticeable increase in the median age of the U.S. population over the past decade. As of the latest reports, the median age has risen from around 36.7 years in 2007 to 38.9 years in 2022, evidencing the population’s gradual aging. This trend is mirrored in California, where the state’s Department of Finance demography reports highlight a similar aging trajectory among its residents. The growing number of older people in the population makes age discrimination a very important issue for several reasons:

• Workforce Participation: With more people living longer and healthier lives, many choose or need to continue working past the traditional retirement age. According to the U.S. Bureau of Labor Statistics, the participation rate of individuals aged 55 and older in the labor force has been steadily increasing over the past two decades. In fact, the Bureau projects that among people age 75 years and older, the labor force is expected to grow by 5 percent over the next decade. This trend is reflected in California, where the aging population remains engaged in the workforce longer than in previous generations. This increases the presence of older workers in the workforce, necessitating measures to protect them from discrimination.

• Economic Implications: The economic engagement of older adults, whether through necessity or choice, plays a crucial role in the economy. Older adults in California make significant contributions to the economy, not just through their labor but also through entrepreneurship. The Kauffman Foundation notes that individuals aged 55-64 had a higher rate of entrepreneurial activity, from every year between 1996 through 2013, than those in their twenties and thirties. Discriminating against this demographic can therefore lead to underutilization of a vital segment of the labor market.

• Diversity and Inclusion: As workplaces strive for diversity and inclusion, age diversity becomes a critical component. California’s leading sectors, such as technology, healthcare, and entertainment, showcase a broad age range among professionals. However, the tech industry, in particular, has been scrutinized for its youth-centric culture, which can inadvertently marginalize older professionals. Age discrimination undermines efforts for workplace diversity, depriving organizations of the wide range of perspectives and experiences that older workers bring.

• Unemployment and Re-employment Challenges: Studies indicate that workers over 50 who lose their jobs face longer periods of unemployment compared to their younger counterparts. The AARP has highlighted that once out of work, older individuals find it significantly more challenging to secure new employment, and that 64% believe workers face age discrimination in today’s workplace.

• Technological and Industry Changes: Rapid technological advancements and shifts in industry demands can disproportionately affect older workers, who may face stereotypes about their ability to adapt or learn new skills. This perception contributes to the need to address age discrimination.

The demographic trends of the past 10-15 years have thus not only highlighted the growing issue of age discrimination but also emphasized the need for comprehensive strategies to combat it—such as by retaining legal representation—to ensure that the workforce remains inclusive and equitable for individuals of all ages.

B. What are the Age Discrimination Laws in California?

If you are 40 years old or older, it is illegal for your employer to discriminate against you based on your age. Age discrimination for individuals 40 and over is a violation of California’s Fair Employment and Housing Act (FEHA)—the same statute that protects individuals based on their sex, gender, pregnancy, medical condition, religion, and other protected characteristics. There are a number of ways that an employer can discriminate against you based on your age. Common forms include:

1. Hiring Practices: Employers might favor younger applicants over older ones, even when experience, skills, and qualifications are comparable or superior in the older applicants. This can also include job postings that specify a preference for younger candidates or use terms like “new graduates” as a proxy for age.
2. Promotions and Advancement: Older employees may be overlooked for promotions or professional development opportunities based on stereotypes that they are less adaptable, less technologically savvy, or close to retirement, regardless of their actual performance and capabilities.
3. Compensation and Benefits: Discrimination can occur in the form of lower salaries offered to older employees compared to younger ones for the same role or responsibilities. Additionally, older workers may be excluded from certain benefits or incentive programs on the basis of their age.
4. Job Assignments and Responsibilities: Older workers might be assigned less desirable tasks or be excluded from high-profile projects based on assumptions about their abilities or interests. Conversely, they may also be burdened with heavier workloads under the assumption that they have fewer personal obligations outside of work.
5. Training and Development: Denying older employees access to training and development programs can be a form of discrimination, particularly if the rationale is based on their age rather than their job performance or the needs of the organization.
6. Layoffs and Terminations: Older employees may be disproportionately targeted in layoffs or downsizing efforts, under the guise of cost-cutting measures, but often due to misconceptions about their productivity or adaptability.
7. Harassment: Age-related harassment can contribute to a hostile work environment. This includes derogatory comments, jokes about age, or other behaviors that demean employees based on their age.
8. Forced Retirement: Compelling an employee to retire based on their age rather than their performance or the mutual agreement between the employer and employee is a discriminatory practice.
9. Workplace Policies: Implementing policies that disproportionately affect older employees, such as inflexible work hours or mandatory retirement ages, without a bona fide occupational qualification, can be considered discriminatory.
10. Technology and Innovation Bias: Emphasizing “digital native” skills or undervaluing the experience and perspectives that older employees bring to the table, especially in fast-evolving industries, can be a subtle form of age discrimination.

C. Do I Have a Case for Age Discrimination?

If you are over 40 years old and have experienced any of the above and have been terminated, demoted, suspended, written-up, forced to quit or retire, or been denied medical leave, please call us immediately.