California’s Age Discrimination in employment laws – what do they prohibit? We’re going to look at that and more in this video. Let’s look at the laws that apply to age discrimination. First is the California statute, California Fair Employment and Housing Act Section 12940(a) is the main age discrimination law in California. It says that it’s an unlawful employment practice for any employer to take adverse actions 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, largely that comes into play when dealing with settlement agreements or severance agreements when our clients are over the age of 40. In essence, it builds into, 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. Okay, what is discrimination? What does it look like? First and foremost, again California law says it’s unlawful for any employer to take an 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 only applies to people who over the age of 40. So, if you’re 39 years old and you want to file an age discrimination lawsuit its 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 why were firing you is because you miss filed this document.” Or “You missed this deadline,” or whatever – things that actually happened. Now, what we have to prove an in 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 do you know – what kind of evidence are you looking for in an age discrimination lawsuit? Obviously – 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 type of comments from supervisors to employees who are working really diligently indicate to them that age might be a 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. Now that we know what age discrimination looks like, let’s look at age harassment. Harassment is under the same statute 12940 and as distinguished from discrimination – where a company is firing or failing to hire somebody because their age. Here it’s where they’re treating somebody poorly because of their age. So, you can think about the 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. 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 a hostile work environment. That’s a legal standard I’ve made an entire video about harassment/hostile work environment cases. And whats really important for age discrimination cases is that the harassment be severe or pervasive? “Pervasive” means it shouldn’t just happen once – it’s gotta happen over over multiple times. And “severe” means on some type of objective standard it’s got to be severe. That 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 on severity. I handled the 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 terrible hostile work environment and is due, 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 kind of cases do we employment lawyers see frequently? We frequently see “young blood” type hiring policies where a hiring manager or HR or CEO or whatever has kind of some unofficial policy to only hire young people. And we often see that proven out and emails and text messages in our cases. We also see, especially at larger employers, phasing out 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, thats very indicative of that phasing out the expensive workers actually a ruse for age discrimination. We also very frequently see 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 are 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 kind 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’re 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 to never do 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, not only are 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 say this if you’re able to find a good employment lawyer. One that you trust, who’s going to invest his or her time and 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.