Like many others, I anticipate that age discrimination is the “future” of employment litigation as many employers, especially in San Francisco Bay Area are so eager to higher younger worker and get rid of the older ones or even “better” – avoiding hiring them in the first place. Often, age discrimination is disguised as a layoff due to alleged workforce reduction or restructuring. In the video, I talk about several common signs that a lay-off may be actually be a wrongful termination due to age discrimination.
This day and age, most employers are far too sophisticated and careful to make their desire to get rid of the older workers and replace them with younger ones obvious, because they are so afraid of being hit with an age discrimination / wrongful termination lawsuit by the older worker who is fired for some bogus reason. Our courts recognize how easy it would be for an employer to cover up the true reasons for terminating older employees behind such vague and hard to disprove reasons as performance, attitude, insubordination, etc. Therefore, the courts allow indirect evidence to be used as proof of age discrimination at workplace. Here are some of the typical signs of age discrimination at workplace that are often just the beginning of an employer’s campaign to push older workers out and replace then with younger employees:
(1) the managers’ comments about the need to bring more younger workers;
(2) referring to older employees by ageist nicknames, such as “father” or “father time”.
A witness statement can be critical in proving any discrimination case. This is especially in true with regard to age discrimination cases which are known for being some of the more difficult cases to prove, because evidence of animus toward an employee because of his age and not for some other reason is so rarely available. However, the good news for older workers who consider bringing a claim against their former employer for (age) discrimination, is that even one single piece of evidence, such as one incriminating statement by a supervisor about older workers can make a case.
The recently published case Cheal v El Camino Hospital out of Santa Clara (2014)is a classic example of a situation where the whole case rested one witness statement. In the case the plaintiff a 61 year-old female who worked at a hospital for over 30 years as a Dietetic Technician was fired for the number of alleged violations and performance deficiencies. Ms. Cheal and her attorney were able to show that most of her alleged violations and performance issues were either not her violations at all, or not nearly as serious as the employer claimed and should not have lead to Plaintiff’s termination. However, as it has been long established, that alone does not prove discrimination, as the employer has sound discretion in evaluating employees’ performance and being too harsh or wrong in evaluating employees is not the same as discriminating.
However, Ms. Cheal present additional evidence that proved to be critical in overturning the dismissal of her case and allowing her to go to trial. She introduced a witness statement of a friend who stated in her sworn affidavit that when she had dinner with Plaintiff’s manager, the manager stated “people at work start noticing that I favor the younger and the pregnant employees” The court found this kind of admission by the manager in an outside-of-workplace environment to be an extremely compelling evidence of age discrimination.
In a recent Forbes article, a Florida attorney Donna Ballman discusses the employers’ favorite sneaky ways of getting rid of older employees, which are described below. This very much applies to California and the checklist below can be a good start for any older employee who suspects that he is or might be a victim of age discrimination to determine whether in fact the employer is trying to get rid of him for unlawful reasons.
1. Job elimination.
One of the most common excuses used to get rid of older employees is “job elimination.” However, that may just be an excuse for what is really age discrimination. If the company is not really eliminating the job, just changing the title and putting someone younger is your former position, you may have an age discrimination claim.
We receive more and more calls from potential clients in the banking industry, and especially from Well Fargo Bank, who believe that they are being mistreated, discriminated and disciplined because of their age. While some of those claims don’t have much merit, in some cases there is significant evidence that the reason that an employee is mistreated is his or her age. This is particularly prevalent in sales and IT departments, but for two different reasons:
Age Discrimination in Sales
Age Discrimination in sales and marketing is mostly driven by the fact that companies won’t to put the prettiest, the youngest and the most energetic people to the front line to interact with their customers, primarily for “aesthetic reasons”. This is not a defense to an age discrimination lawsuit, but for some banks it’s worth taking the risk of facing liability for discrimination for the sake making its sales teams younger and more physically attractive.
I am surprised by the amount of calls I get from older workers who work for banks who are clearly driven out of their workplace during age. Most of these calls come from Wells Fargo Bank branches. Many of them hold high level positions and have been working for the same bank for fifteen, twenty or more years. Usually the process starts with the older worker being written up by his or her manager for petty violations or fabricated violations or being issued unsatisfactory performance reviews. Because there are no laws that regulate these performance reviews, and the employer has almost full discretion in expressing their opinion about an employee’s performance, the management can basically include what they please in employee’s evaluation.
A negative performance review or several such reviews are followed up with a 30 or 90-day performance improvement plan (PIP), and then “termination for unsatisfactory performance”.
Shortly after the older employee is terminated, he is replaced by a significantly younger employee.
Some Employers seem to conveniently believe that replacing an older worker with a younger woman who has less seniority and therefore can be paid less is not against the law and is not considered age discrimination, since they believe they have a valid reason for that kind of replacement – saving money. In drafting the Fair Employment and Housing Act, the California legislature addressed that specific situation, enacting Gov. Code 12941, which states that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination. It is thus likely that any employment decision based on salary differentials between older and younger workers, such as hiring, promotions, pension benefits, etc., can be challenged as age discrimination if it has a great impact on older workers as a group.
I believe that as the well known and expected trend of aging of the local San Francisco Bay Area population and the population of its workers, age discrimination and age discrimination claims at workplace will be on the rise in the next several decades. As usually, proving liability of the wrongdoer in court will be challenging, as direct evidence of discrimination such as calling an employee names suggesting age related animus is unlikely to be available, and thorough discovery of circumstantial evidence will be necessary to win such cases, such as the timing of events, replacing older workers with younger workers, and inconsistencies in the employer’s formally given reasons for terminating older workforce.
Like any other kind of employment discrimination, proving age discrimination at workplace is anything but easy. Some employees believe that being terminated at the age of over 40 means they have a wrongful termination claim based on age discrimination. While the termination itself if one factor that may point at age discrimination, if this were all that need to prove the age case, every person over 40 who was terminated would have had a discrimination claim. This would of course be an absurd.
It is useful to know however what facts can be helpful in prosecuting a lawsuit for age discrimination. The First Appellate District provides a useful guidance in Stephens v. Coldwell Banker Commercial Group, Inc. 199 Cal.App.3d 1394 (1988). Like pretty much all other courts, the Stephens court began analyzing the jury’s verdict by noting that in most employment discrimination cases , direct evidence of the employer’s discriminatory intent is unavailable or difficult to dispute, and therefore an indirect method of proof is required. Thus, to establish the initial claim for age discrimination, the employee has the burden of proving that he was within a protected a class (over 40), that he was performing satisfactorily, and that he was terminated or demoted under circumstances which give rise to an inference of unlawful discrimination. Once the initial claim is shown, the employer has to produce evidence that plaintiff was demoted or terminated for legitimate, non-discriminatory reasons. Plaintiff then has an opportunity to prove that a discriminatory reason more likely motivated the employer or that the employer’s proffered explanation for termination or demotion is unworthy of belief in pre-textual as a cover-up for discrimination. As you can imagine, once an employee meets the initial burden, the employer will do its best to show that it had a legitimate reason for taking action against the employee. The most common proffered reasons for firing are misconduct, poor performance, insubordination or even reduction in force. It’s easier for employers to use poor performance as a justification for termination because it is such a subjective matter, where employer under the law have discretion in determining for themselves whether they are satisfied with the employee’s work. However, this doesn’t mean that all is lost for the victim of age discrimination. Just because the employer argues that the employee was a bad worker, doesn’t mean the employer wins the case.
There are several useful tools in the employee’s arsenal to rebut or make the poor performance argument less believable to the jury/judge. First, long tenure of service for the employer is a major element of showing that the employee was likely not terminated because of poof performance. After all, if plaintiff was such a bad worker, why did the employer keep him/her around for so many years. in Stephens, the plaintiff was employed with the defendant-employer for nearly 30 years before being terminated for “poor performance.” But, even a shorter, but still significant career length with the employer will cast doubt on why the employer kept a certain employee around if they were not happy about the quality of his work, especially if the employee has a documented past of good performance, such as promotions, awards, bonuses, positive performance reviews and alike.
The California Fair Employment and Housing Act (FEHA) protects individuals who are at least age 40 from discrimination based on age in hiring, firing, compensation, and the terms, conditions, and privileges of employment. Because the legislature has included age among the specific categories protected by FEHA, employers are prohibited from discriminating against employees on the basis of age in the terms of employment as well as in the hiring or firing of employees.
FEHA also prohibits mandatory retirement for employees who are capable of performing their jobs adequately, with a few limited exceptions:
* Tenured faculty members at institutions of higher education, if the institution permits reemploying such individual on year-to-year basis.