As of 2017, the average amount of years a person lives in full health in the United States is 79 and the average working American retires at age 66. The latest stats show Americans are capable of working and some do, work well into their later years, but are they afforded the same opportunities as younger employees?
Today, older individuals who are currently employed or are applying for a position remain at risk for becoming victims of unlawful hiring practices, which is considered age discrimination. For older workers who are currently employed, it makes sense that as younger individuals enter the job market, the older employees still remain in their current positions. This has the potential to tempt employers to trade them in for a new and shinier model.
Below is a list of signs a Discrimination Attorney would likely identify as discriminatory behavior in the workplace.
- You were fired and you are 40 years old or older
If you’re 40-years-old or older, that ticks an initial box in determining if you can sue your old boss for discrimination, but it’s not that simple. Employment laws in California forbid discrimination from taking place in the workplace. Discrimination laws in the state to protect certain classes of individuals as well as particular characteristics an individual may possess and age is protected for employees and applicants who are 40 years of age. Keep in mind though, the age of 40 and older is not sufficient to protected age discrimination. In other words, employees who are 40-years-old or older do not have an automatic special status that is protected by the law. But, an employee who was fired because of age and they are 40 years of age or older, that set of facts does give rise to a potential age discrimination claim. If age, specifically age 40 or older is in fact raised in the decision to terminate an employee, that is perhaps sufficient to establish age discrimination.
- You were fired and replaced by someone younger
Amongst other facts, a key sign that you were fired based on your age would be if your replacement was younger than you. Specifically, the significance in age difference is the giveaway that you were discriminated against. So the bigger the age gap, the more likely it is that you can prove you were terminated based on your age. For example, Joe, a 52-year-old car salesman, worked for 13 years at a dealership. His employer fired him without reason and replaced him shortly after with a 27-year-old woman with the same if not less experience than Joe. Based on this set of facts, Joe could potentially prove that he was fired based on his age. Alternatively, let’s say instead of Joe being replaced by the 27 year-old, he was fired and replaced by a 39-year old. Although Joe’s replacement is still younger than he is, the age gap is not as significant as the one between him and the 27-year-old replacement. Joe may still have a claim, but his claim is stronger in the first scenario because there is evidence to support an inference that he was fired because of his age.
- You were qualified for the position
If you were qualified for the position but were fired anyway, this could demonstrate you were fired because of your age and for no other reason. For example, if Beth, 43-years old, worked as a receptionist for a talent agency and was let go from her position. During her meeting with HR and her boss, she was told the company was going in a different direction and needed to hire someone with more experience. Soon after, Beth was replaced by a significantly younger employee who had the same skills, if not less than Beth. Here, Beth could use these facts to potentially prove that she was fired based on her age for two reasons: 1) she had the skills required for the position and they fired and replaced her with someone who did not have more skills than she had and 2) the employee who replaced Beth was significantly younger. Of course, it is also important to note again that Beth is 43-years-old so again she meets the initial element of age discrimination. Beth would likely need to have an Age Discrimination Attorney present some evidence showing her age was a factor in the decision replace her. An example would be if her boss made a comment along the lies of “we need young blood in this department” would suffice.
- Your boss made comments or jokes about your age
Comments, jokes, remarks, or name-calling in regards to age, made by an employer or a supervisor to an employee 40 years of age or older is considered discriminatory behavior. Name calling may include titles such as “Old fart”, “Pops”, or “Ole’ goat”. These nicknames used to reference an employee is considered offensive and directly attacks their age. Even jokes that may seem harmless to the teller are still considered discriminatory when commenting on someone’s age. For example, An employee turns 50 and her boss says “you know you’re getting old when the candles cost more than the cake”. Here, this may seem harmless, but depending on the circumstances it could lead to contacting an Age Discrimination Attorney.
- Other employees your age were also fired
If before or after you were fired from your job, you know of other employees whom were fired and who were also under the protected age, that may bolster your age discrimination claim because it establishes a pattern of discriminatory behavior.
- You were treated differently compared to other employees
Some employers use certain tactics to discriminate against employees in more subtle ways such as treating them differently compared to other employees who are under 40 years of age. Although subtle, they deliberately play favorites and purposely treat the older employee(s) in a disadvantageous manner.
- Your employer made changes or additions to the company policy to push you out based on your age
Leading up to your termination, if your employer tried to create a divide between your age and the rest of the employees who were younger by characterizing you as belonging to a certain age group, that may be considered discriminatory. Another example would be if the employer actively took steps to keep you from obtaining employee benefits or promotion opportunities.
- The decision to fire you was specifically motivated by age
This may be demonstrated by making it a company policy to force employees to retire at a certain age. Another example would be if an employer fired an employee because the company insurance policy would cost more to cover the employee because of their age.
- Things got worse after you made a complaint
Let’s say before you were fired, you noticed you were being singled-out based on your age and you made a complaint to HR. Soon after you complained you were demoted to a lower paying position or even fired. This would be a form of retaliation because you made a complaint about unlawful behavior and in response your employer essentially punished you. Showing that you were retaliated against for complaining of being singled out based on your age may strengthen a claim for age discrimination.
- Your age was the reason given for firing you
Although it may seem obvious, it is important to note that if an employer fires you specifically because of your age, that is age discrimination. However, you must prove the main reason you were fired was that of your age. For example, if you were late several times to work, were caught stealing office supplies, you lied on your time-card, and your boss said: “Get your old saggy butt outta here, you’re fired, grandma!”. Here, yes this employer may have an issue with your age and made offensive comments regarding your age, but it may not be considered the leading cause of your termination. Alternatively, if your boss sat you down and told you “I can’t keep you on the team, we need a more youthful perspective on the project and you are just too old”, that is an example of age being the director leading cause of your termination.
If you feel you have been discriminated against based on your age call an Age Discrimination Attorney to discuss your potential claim.