Item: Steven M. Sweat, APC
Rating: 5
Author: Rich

What Rights Do You Have if You Get Let Go From Your Job After 50 Years Old?

If you are over age 50 and have been let go from your job, there is a real possibility that your age factored into the reason why you were separated from your employment. Both California's state law and federal law prohibit workplace discrimination based on your age if you are 40 or older. Despite these prohibitions, age discrimination continues to be a real problem for older workers throughout the U.S. A recent study illuminates the extent of this problem for older workers. It is important for you to understand your rights as an older worker so that you can take action if you are the victim of age-related discrimination by your employer.

Analysis by ProPublica and the Urban Institute

The Urban Institute and ProPublica have conducted an analysis of data from the Health and Retirement Study. The Health and Retirement Study is a longitudinal study of 20,000 people that began in 1992. The study examines people who have turned age 50 and follows what happens to them as they age for the rest of their lives.[1]

ProPublica and the Urban Institute have found that after older workers enter the longitudinal study at age 50, 56 percent will be forced out of jobs or laid off at least one time before they ultimately leave the workforce.[2] In most cases, being forced out of jobs or being laid off can have an extremely devastating financial impact on older workers.

When older workers are laid off, they have a much more difficult time finding a new job that pays as much as their former positions. Just 10 percent of the workers in ProPublica's analysis were able to find jobs that paid as much as their former jobs. A study that was conducted by researchers on behalf of the National Bureau of Economic Research found that age discrimination against older workers is a pervasive problem. The researchers created fictional resumes for people in three age groups, including ages 29 to 31, 49 to 51, and 64 to 66 and submitted 40,000 job applications. They found that the fictional applicants in the 64 to 66 age group received 35 percent fewer callbacks than the people who fell into the 29 to 31 age group.[3]

ProPublica examined workers who were older than age 50 and found that 28 percent suffered at least one layoff between the age of 50 and when they finally retired. ProPublica reports that data from the U.S. Census Bureau shows that more than 40 million people in the U.S. who are older than 50 are working. The analysis suggests that 22 million of them will suffer an involuntary separation from their jobs, be forced to retire, or will be laid off from their jobs.

The Equal Employment Opportunity Commission is the federal agency that is tasked with enforcing the federal anti-discrimination laws, including the Age Discrimination in Employment Act. According to the agency's charge statistics from 2008 to 2017, age discrimination charges have accounted for 21.8 percent up to 25.8 percent of all of the discrimination complaints filed for each year. In 2017, the agency received 18,376 age discrimination complaints, demonstrating the seriousness of the problem.[4]

The Age Discrimination in Employment Act

The Age Discrimination in Employment Act was passed in 1967 and prohibits workplace discrimination based on the age of workers who are 40 and older.[5] Under this federal law, employers are prohibited from discriminating against older workers in every aspect of employment, including the following:

Hiring
Interviewing
Recruiting
Advertising
Promotions
Bonuses
Training opportunities
Layoffs
Terminations

Despite the fact that this federal law has been the law in the U.S. for more than 50 years, many employers persist in discriminating against older workers because of their ages. In addition to federal law, age discrimination against older workers is also prohibited under the laws of California.

California Fair Housing and Employment Act

Under the California Fair Housing and Employment Act, employers in California are prohibited from discriminating against workers who are ages 40 and older on the basis of their ages.[6] Like the ADEA, employers under the state law are prohibited from discriminating against older workers in all aspects of employment.

Workers in California who are wrongfully terminated, laid off, or forced into early retirements may have valid claims under both the state and federal laws if the end of their jobs was because of their ages. In order to prove an age discrimination claim in California, plaintiffs must be able to prove all of the following elements by a preponderance of the evidence:

The plaintiff was employed by the defendant or had applied to a job with the defendant;
The defendant either discharged or refused to hire the plaintiff; or
The defendant engaged in a negative job action against the plaintiff; or
The plaintiff was constructively discharged;
Tsubstantialwas 40 years old or older;
The plaintiff's age was a substantially motivating factor for the defendant's action;
The plaintiff suffered harm; and
The plaintiff's harm was caused by the defendant's actions.[7]

In order to prevail on an age discrimination claim, the plaintiff must be able to present evidence showing each of the elements. If one of the elements is missing, the claim will be unsuccessful.

Proving that an employer's actions were based on your age can be difficult. In many cases, employers will do things to try to cover up the real reason that they terminated an older worker. They might do such things as starting to give negative performance evaluations after the worker has received positive evaluations consistently for years. They might also pass over more qualified older workers for applicants who are less qualified but younger for promotions or for job offers. Workers may be asked by their employers when they plan to retire, and others at their jobs may subject them to teasing and comments about their ages.

If you believe that you were forced out of your job because of your age, you may have legal rights. It is a good idea to talk to an experienced age discrimination attorney in California to learn more about the potential rights that you might have. Call the Law Offices of Steven M. Sweat today to schedule your consultation.

References

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