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Age discrimination is potentially the most common and pervasive type of employment discrimination that workers across San Diego face, despite the legal protections in place to safeguard the rights of older workers.
This type of discrimination places older workers at a disadvantage when it comes to hiring practices, career advancement and continued employment, which can in turn have a knock-on effect on the business in terms of limiting the skills and experience of the workforce, and of course, increasing the risk of potentially costly and time-consuming litigation.
All businesses should take care to ensure that they offer equal opportunities to qualified workers and job applicants, regardless of their age, and the first step to being able to achieve this is recognizing what age discrimination is, and who is affected by it.
In this blog post, we will answer some of the most frequently asked questions from businesses about age discrimination, and share some guidance on how to handle some sensitive areas of age discrimination hiring and working practices and policies.
The right to work free from age discrimination in the USA is mandated under the remit of the Age Discrimination in Employment Act (1967) or ADEA. This in turn falls under the umbrella of the Equal Opportunities Employment Commission.
Whilst any employee can be disadvantaged by age discrimination (including younger employees) legal protection against age discrimination is only provided to employees aged 40 or older.
This applies to all federal, state and local government employers, as well as private employers with twenty or more workers – but not to private employers with under twenty employees in total.
Age discrimination legislation does not usurp an employer’s right to employ the most appropriate and qualified person for the job, and there is no requirement in law to fill a quota of older workers or initiate positive discrimination policies in favor of older workers when it comes to hiring practices.
The spirit of the law against age discrimination is that the age of the employee or candidate is irrelevant, or not taken into account as part of hiring and employment decisions – and there is no requirement to set hiring quotas for older workers nor to limit the number of younger workers you employ.
However, if your business’s hiring practices result in a high proportion of younger workers and few or no workers over the age of 40, you should take care to ensure that this is not because of age discrimination, whether this be deliberate or accidental.
If you are keen to ensure that you employ a mixed-age workforce and that you don’t disadvantage older workers, one obvious way to do this might appear to be asking applicants for their age, either at the interview stage or as part of the application process.
However, it is important to remember that when it comes to ensuring compliance with age discrimination law, the appropriate approach to take is to view the applicant’s age as irrelevant – not as either a positive or negative factor in your decision-making process.
Asking applicants for their age, requiring that they provide their date of birth or using other methods to try to ascertain an applicant’s age – such as by piecing it together from their graduation date or other information they provide – can leave you open to claims of age discrimination.
In most states, it is still legal to ask an applicant for their date of birth or age, providing that this information is necessary or relevant and not in order to exclude older applicants.
It is important to ensure that you have a good reason before asking an applicant their age or date of birth, and do not use this information as part of your ultimate decision, other than as is directly relevant to the scope of the job and within the remit of the law.
However, some states also mandate certain localized requirements when it comes to protecting applicants against various forms of discrimination too, including California.
In the State of California, The Department of Fair Employment and Housing Act states that applicants cannot be asked their age, date of birth, or other questions designed to determine their age, such when they graduated, as this may disadvantage older applicants.
However, it is acceptable to state that any potential employment offer will be conditional on verification that the applicant is of legal age to take the position in question/perform its roles.
Lay-offs and redundancies do happen from time to time, and invariably, deciding who stays and who goes is a highly charged and often, very emotive process – after all, these are people’s lives and livelihoods hanging in the balance.
How any business decides to choose who to lay off is a process that should be undertaken carefully, bearing in mind the business’s requirements and the fairest approach for the workers whose jobs may be at risk.
Age discrimination legislation protects older workers from being disadvantaged in the workplace due to their age, but it does not protect them against non-exclusionary or discriminatory working practices, such as consideration for redundancy or lay-offs.
This means that businesses can lay off and let older workers go just like workers of any other age, but that you must not automatically look to older members of your team or show a preference to keep only younger members, or you may be in breach of the law.
If you do need to handle redundancies or lay-offs that involve or may potentially involve older workers, you may wish to retain the services of an employment law attorney to provide advice and guidance, and ensure that your selections and how you handle the process fall within the remit of the law.
If you feel you’ve experienced age discrimination from an employer or business in San Diego, contact Walker Law now to speak with a team of highly experienced employment law attorneys in San Diego. We offer free 15 minute confidential consultations to discuss your case.