One increasingly common side effect of the COVID-19 is a virulent uptick in ageism. As a longtime L.A. employment lawyer, I’ve noted an uptick in ageist attitudes in the social media sphere that is undoubtedly pervading workplaces as well.
Research published in the journal Age and Ageing found that older people were misrepresented and undervalued in the public discourse surrounding the pandemic, and that some policies that may have purported to be “protective” of older populations were in fact patronizing and possibly illegal.
The risk of serious coronavirus complications statistically increases with age, per the CDC. This may have prompted some employers to engage in age discrimination against older workers and prospective employees.
From the employers’ perspective, the risk of hiring/employing older, higher-risk workers is the possibility of lost productivity, more used sick days and the potential to need to replace them. That’s all pretty callous, but even employers with the best of intentions might still be engaging in unlawful discrimination. Some examples might include:
- Putting any older workers on furlough while allowing younger employees to continue working.
- Mandating personal protective equipment only for older workers.
- Requiring older workers to move from the front of the office to the rear, away from contact with the general public (thereby significantly changing his/her work duties).
- Terminating an older worker based on the belief that he or she will be pricier to keep as an employee because of more paid time off, insurance costs, accommodations, etc.
No matter how well-intended an employer is, this kind of activity likely violates the Age Discrimination in Employment Act of 1967. As our L.A. age discrimination attorneys can explain, this law, referred to as the ADEA for short, protects employees over the age of 40 from disparate treatment in all aspects of employment. That includes not just hiring and firing but compensation, job duties and benefits. Even policies that don’t expressly single out older workers might still violate the law if one can show they adversely impact those over the age of 40.
ADEA is applicable to local, state and federal government employers and any private employers who have more than 20 workers. California law offers additional protections under the California Fair Employment and Housing Act, applying the law to employers with five or more workers. Harassment (including age-based harassment) is prohibited in all workplaces in California – even those with fewer than five employees.
Individuals whose rights have been violated under ADEA or FEHA due to age discrimination can pursue damages for lost wages, attorney’s fees, court costs and other appropriate legal or ethical relief (such as promotion or resinstatement).
As to whether older workers might be able to ask for a re-assignment due to their heightened COVID-19 risk, the answer lies in the Americans With Disabilities Act of 1990, which gives all workers the right to a reasonable accommodation because of a medical condition. If someone has an underlying condition that would put that at higher risk of serious complications, they may be able to ask for a reasonable accommodation, but that would be granted based on the disability, not the age, of the worker.
The Equal Employment Opportunity Commission recently outlined a number of Frequently Asked Questions on this and other questions on the laws related to COVID-19 and the workplace.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Age Discrimination And Covid-19: What Are The Rights Of Older Employees? By Tom Spiggle, Aug. 4, 2020, Forbes Magazine