Age discrimination is an ongoing problem in workplaces throughout California and the U.S. Recognizing this, the U.S. House of Representatives recently passed a bill aimed at protecting older Americans, potentially making it easier to file suit for violations.
The Protecting Older Workers Against Discrimination Act was introduced earlier this year as part of a bipartisan effort. The goal is to restore workplace protections for 40-and-older workers that were undercut in Gross v. FBL Financial Services, Inc., a 2009 U.S. Supreme Court ruling. That ruling made it tougher to prove age discrimination.
In that case, the high court held that plaintiffs alleging disparate treatment under the Age Discrimination in Employment Act (ADEA) of 1967 must prove that one’s older age was the “but-for” cause of the adverse employment action. In other words, as our Los Angeles age discrimination lawyers can explain, the burden doesn’t shift to the employer to prove the action would have been taken regardless of age – even if the worker produces evidence that age was one motivating factor. The court held that ADEA doesn’t authorize a so-called “mixed-motives age discrimination claim.” Rather, it states that claims may be brought when an employer took some adverse action “because of age” and that age was the “reason” the employer decided to act.
With the country’s highest court taking that position, the only remedy is to amend the law, which is exactly what lawmakers are attempting to do with this new law. As one sponsor noted, making age discrimination lawsuits more difficult to prove is contradictory to the goal of supporting older workers who have long been vulnerable to discrimination by employers.
If it passes in the Senate and is signed by the president, it would effectively align protections against age discrimination to be the same as what they are on the basis of race, sex, religion and national origin.
We know that age discrimination is not only harmful for the workers who experience it, but for the companies and younger workers who are deprived of the experience and expertise that can be passed on by older workers. Despite this, it’s estimated 8 in 10 workers between the ages of 40 and 65 have experienced some form of discrimination, according to the elder advocacy organization AARP. The pandemic has taken its toll as well, with older workers who lost jobs finding it tougher to re-enter the workforce, sustaining longer levels of unemployment than their younger peers.
The chances of this bill passing are unclear. The House passed a version of this last year that the Senate shot down.
In addition to the ADEA, there is also the California Fair Employment and Housing Act (or FEHA), which protects against numerous forms of discrimination, including that which is based on age. Then there is the Older Workers Benefit Protection Act, a federal law that gives employees over 40 at least 21 days to review any documents that waive their rights (such as to a severance agreement). Employees also have one week to revoke any severance agreements.
Common examples of age discrimination may include:
- Encouraging older workers to retire.
- Using “poor performance” as a pretext for laying off older workers.
- Teasing older workers about their age.
- Choosing to hire younger applicants over better-qualified older applicants.
If you’re over he age of 40 and your company presents you with documents that may waive your rights or if you suspect you’ve been denied opportunities because of age discrimination, an age discrimination lawyer can help.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Gross v. FBL Financial Services, Inc., 2009, U.S. Supreme Court