Age Discrimination: What Does an Employee Need to Show?

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California's age discrimination laws are to be enforced “with the goal of not only protecting older workers as individuals, but also of protecting older workers as a group, since they face unique obstacles in the later phases of their careers.” Thus, an action for age discrimination can be based upon discrimination against a single individual or based upon discrimination against a group of individuals.

It must be recognized that FEHA's age-related discrimination provisions only apply to employees who are 40 and older.

Proving Age Discrimination

To prevail on an age discrimination claim, an employee must ultimately prove, by direct or circumstantial evidence, that an adverse employment action -- a termination, demotion, failure to promote, failure to hire, etc. -- was taken against them because of their age.

Direct Evidence

Direct evidence is evidence which in itself proves discriminatory animus against an individual because of their age. Such evidence can include specific comments and actions taken against an employee because of their age.

Example:

After a 58 year old employee applied for a new position at his company, a vice president pulled him aside and told him that he would not be getting the job because the company was looking for “someone younger” for the position, “someone who was in their early 40s.”

Circumstantial Evidence

Circumstantial evidence can also be used to prove unlawful age discrimination. Circumstantial evidence is evidence that leads to a reasonable inference that age discrimination has occurred.

Typically, a reasonable inference that age discrimination had occurred arises when an employee makes the following showing:

  1. At the time the discrimination took place, the employee was 40 or older;

  2. At the time the discrimination occurred, the employee was satisfactorily performing their job duties;

  3. The employee was treated differently than other, younger employees.

An employee's circumstantial evidence must be sufficiently strong to overcome any innocent reasons that an employer may offer for an employment decision.

Examples:

A company with 100 employees, lays off 8 employees. All 8 employees, who all work in different departments, are above the age of 55. All 8 employees were told they were being laid off because of a “restructuring.” While there is no direct evidence that the 8 employees were laid off because of their age, the fact that all 8 employees were over 55 and were the only employees laid off, is strong circumstantial evidence of age discrimination.

A 62-year-old employee who has worked for a company for eighteen years and has always received satisfactory performance reviews is denied a promotion to a senior manager position. A 32-year-old employee, who has only worked at the company for one year, is given this promotion. The fact that a younger employee with less experience is promoted over an older, more experienced employee is circumstantial evidence of age discrimination.

Take-away: Evidence that an employee older than 40 was replaced by a significantly younger employee or treated less favorably than a younger employee, can permit an inference of age discrimination.

An Employee Can Rely on a Disparate Treatment or a Disparate Impact Theory to Support Their Age Discrimination Claim

An employee relying on a disparate treatment theory to support their age discrimination claim will need to prove that they were treated differently than other, younger employees.

An employee relying on a disparate impact theory to support their age discrimination claim will need to prove that a particular practice of an employer has the effect of negatively impacting employees older than 40.

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