How Do I Know If I am Being Discriminated Against Because Of My Age? The Basics of Age Discrimination Claims

Written by Galen Shimoda and Jennet Zapata

While many people may think they know what constitutes a viable claim for age discrimination, popular media is not the best barometer for whether a potential claim is strong or not. As such, the following is a basic outline of the legal framework an employee would have to navigate in attempting to prove an age discrimination claim. The Age Discrimination in Employment Act ("ADEA") and the California Fair Employment and Housing Act ("FEHA") prohibit discrimination in employment against workers age forty (40) or older. The FEHA also prohibits an employer form retaliating against an employee because the employee opposed practices like age discrimination, filed a complaint regarding age discrimination, testified or assisted in any FEHA proceeding regarding age discrimination, and it also prohibits harassment based on age. Generally, there is no individual liability for violating the FEHA's prohibitions on discrimination. Only the business entity itself is typically liable. However, for businesses that employ five or more employees, not only would supervisors and/or managers be potentially liable for harassment based on age, but coworkers are also liable for such harassment.

An employee claiming age discrimination must prove by direct or circumstantial evidence that the adverse employment action (i.e. a demotion, termination, etc.) was taken because of his or her age. For instance, when applying for a full-time court commissioner position, a 64-year old applicant was told they wanted somebody younger, maybe in their 40's. The statement proved discriminatory animus. Similarly, a supervisor's admission that an employer intended to get rid of older carriers and replace them with younger, faster carriers was direct evidence of discriminatory intent. The age-biased statement must have been made in relation to the adverse employment action.

Because such direct evidence is rarely available, California courts utilize a burden-shifting analysis used in employment discrimination cases generally. Under this test, once an employee makes an initial showing of age discrimination, the employer has an opportunity to offer any legitimate, nondiscriminatory reasons for the adverse employment actions. Lastly, the employee may ultimately show that the employer's stated reason is not the true reason, but instead is a "pretext," and that its true motive was discriminatory. Ultimately, the employee must persuade a jury that age discrimination was the reason for the adverse employment action.

An employee must show the following to raise a presumption of discriminatory motive in cases where there is no direct evidence of discrimination: the employee (1) was age 40 or over; (2) was qualified for the position or performed the job satisfactorily; (3) suffered an adverse employment action, and (4) was replaced by a sufficiently younger worker with equal or inferior qualifications, so as to permit an inference of age discrimination. The employee's evidence must be sufficient to support a finding of intentional age discrimination. The stronger the employer's showing of innocent reasons for its actions (e.g. economic reasons for downsizing), the greater the circumstantial evidence of discriminatory motive is required (raw age comparisons have been found to be insufficient to infer discriminatory motive where employer's stated reasons for downsizing were undisputed.)

The inference of age discrimination may be created by evidence showing that either (a) the employer had a continuing need for the employee's skills and services and redistributed most of his or her duties among younger employees, or (b) similarly situated younger workers were retained or treated more favorably. Evidence that an age-protected worker was replaced by a "substantially younger" person, or given "more favorable treatment" may permit an inference of intentional age discrimination. It is not necessary to show that an employee was replaced by a younger worker. It is enough that persons significantly younger were retained in similar jobs, or reassigned to positions for which an older employee was also qualified, or otherwise treated "more favorably." However, if an age-protected worker is less qualified or performed duties differently from those retained or treated more favorably, an employer may overcome any inference of discrimination. For instance, California courts have found that an employer may lawfully discharge an older employee who was not as computer literate as the worker retained. Ultimately, an employee must prove that an employer treated someone less favorably than others because of his or her age.

If you are not sure whether you have an age discrimination claim, please contact our office to have your claims evaluated.


The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

Back to Articles