“Age discrimination” in the workplace occurs when an employer treats employees or applicants less favorably because of their age, specifically because they are older than 40. There are both state and federal laws that prohibit age discrimination in the workplace. The federal law is called the Age Discrimination in Employment Act (ADEA). The ADEA applies to employers with 20 or more employees. The California law against age discrimination is in the Fair Employment and Housing Act (FEHA) and applies to any employer with five or more employees.
During the application and hiring processes, employers must be careful not to use language or act in a manner that discriminates against any applicant because of their age. There are several ways in which an employer can discriminate against an applicant, including: refusing to hire an applicant because of their age, specifying age requirements in a job application (except for rare exceptions when an applicant must be a certain age to perform the duties of a job, for example, serving alcohol), requesting an applicant’s age or birthday for the purpose of using that information to make a hiring decision, and hiring a younger applicant over an equally qualified older applicant based solely on the difference in their age.
Age discrimination in the workplace can come in a variety of forms, including: refusing to delegate responsibilities to a specific employee because of their age, withholding benefits, taking preference to younger employees because they are believed to be more capable, denying an employee a promotion based on their age, making negative comments or gestures that reference an employee’s age or their inability to perform certain tasks due to their age, and urging an employee to retire or resign because the employer believes they are too old. An employee is not only protected from age discrimination from their employer, but also from their supervisors, coworkers, and customers. Employers are required to take proactive steps to ensure age discrimination does not occur in their workplace and to immediately stop and discipline those who engage in age discrimination.
Before an employee can sue their employer for age discrimination, they must first file a discrimination charge with either the Equal Employment Opportunity Council (federal level) or the Department of Fair Employment and Housing (DFEH). If you believe you have been discriminated against either as an applicant for a job or as an employee because of your age, you should consult an employment lawyer to learn your rights and help guide you through the process of filing a discrimination charge.