Did You Just Call Me Old and Decrepit? Age Discrimination in the Workplace

One of our callers recently recounted his experiences on the job. His supervisor began calling him “old and decrepit,” and he wondered if that was unlawful. Eventually, his employer found a way to terminate him.  Many mature workers report being demeaned on the job by supervisors or younger employees.  They are the brunt of comments like “You’re not a good cultural fit” or “We see you as someone at the end of their career.” For a worker who has spent a lifetime on the job, these comments can sting. You may know they aren’t true, but if you feel you are perceived as useless by others, you can start to question your contributions. It’s an ugly business and it may constitute age discrimination.

What can I do?

You can know your rights. In California it is illegal to discriminate or harass any employee over the age of 40 on the basis of age. Much like race and gender, age is a protected class. The ADEA (Age Discrimination in Employment Act), was enacted to protect employees as they age on the job. The cutoff for such discrimination is 40 years of age or older. Under the ADEA it is unlawful for an employer to treat an employee less favorably due to their age.

How it Manifests

Age discrimination can be expressed in any term or condition of employment, including:

  • Hiring Process:

    • an employer who refuses to hire a 58-year-old applicant because she is “over the hill” is breaking the law;
  • Promotions:

    • an employer who denies a 43-year-old tech worker a promotion because he is no longer “a good cultural fit” is breaking the law;
  • Demotions:

    • an employer who re-assigns a 62 year-old VP to a low-ranking job in the company because he’s “at the end of his career,” and then gives the VP position to a younger employee, is breaking the law;
  • Harassment:

    • an employer or manager working for the employer who consistently utters offensive remarks about an employee’s age may be breaking the law by creating a hostile working environment.
  • Termination:

    • an employer who lays off a 54-year-old employee as a “cost-cutting measure,” only to replace her in the same job a week later with a 32-year-old, may very well be breaking the law.

Warning signs to look for in an employer’s behavior include:

✓ Posted job offers that are clearly seeking only recent college graduates, or other “code phrases” for employees in a certain age bracket;

✓ Hiring a younger job applicant over a more qualified older employee just because the other applicant was younger;

✓ Denying older workers training or educational classes offered to other, younger employees;

✓ Denying a promotion to an older worker, and subsequently hiring a younger person to fill the position;

✓ Layoffs that disproportionately affect workers over 40;

✓ Employers who begin to informally demote their older workers, giving them menial tasks and/or less responsibility, in an effort to humiliate them into retiring

What damages can I collect if I decide to sue?

Age discrimination is systemic, oppressive and extremely difficult to prove. Employers are good at coming up with “legitimate” reasons to explain many of the behaviors and practices listed above. But if you are successful in proving your treatment was a result of your age, you can potentially recover:

Lost Wages and Projected Wages

These damages are available upon proof that an employer’s actions at termination were because of your age. Types of wages available are “back pay” (your wages from termination to the time of trial or settlement) and “front pay” (future wages are assessed in relationship to the negative impact on your career and earning capacity).

Lost Benefits

You may also be entitled to recover any benefits that were cut off by your employer upon termination or demotion. These can include health care, pension vesting rights, other retirement benefits, or any other benefits you would have received if not for the discriminatory act.

Emotional Distress Damages

Emotional distress damages (also called “pain and suffering” damages), may be available. A plaintiff seeking theses damages must prove he or she has suffered emotional distress. Unlike lost pay, emotional distress damages do not easily translate into a dollar amount. It is entirely up to the jury. Emotional distress might include high blood pressure, anxiety, depression and other emotional and/or physical symptoms.

Punitive Damages

This type of damages is meted out by a judge or a jury as a “punishment,” as you might be able to tell by the title. The ADEA does not allow employees to collect an award of punitive damages, but state laws may. When they do, the cases must not only be proven, but the employer’s actions must be egregious and deliberate, and even then, a plaintiff must be able to meet a very high standard of proof. And the amount of punitive damages, if any, is entirely up to the jury.

Attorneys’ Fees

The ADEA and California law, both contain provisions to allow for attorneys’ fees at trial.

It’s a Tough Road

Even the strongest of lawsuits can be costly, time-consuming, and difficult. Before undertaking litigation, you should go over the chances of winning with a lawyer. He or she can assess the merits of your case and generally give you an idea of what it will take to prevail.

If you are currently being discriminated against due to your age (over 40), or you have been recently terminated and you believe it was an age-motivated firing, contact an experienced employment attorney immediately, prior to signing anything in any severance package that has been offered to you.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA


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