Orange County Age Discrimination Attorney
Age Discrimination
Ageism, or age discrimination, is stereotyping people based on their age alone. The term was originally penned to give a name to the discrimination faced by older people and senior citizens in the workplace but, with time, the definition has been expanded to include discrimination towards people that are young as well.
Most of the labor laws in the United States are designed to protect employees over forty years of age. This group of employees is protected from age discrimination in the workplace by federal law. Federal law includes all employers that employ 20 or more individuals. States are allowed to have different requirements as to how many employees an employer must employ to be subject to various employment statutes such acts as the Age Discrimination in Employment Act of 1967. In California, an employer must regularly employ a minimum of 5 employees. While that may seem clear cut, the Supreme Court has allowed different ways of counting the number of employees an employer has in their employ.
The Age Discrimination in Employment Act of 1967 includes various protections for job applicants and employees. These protections apply to employment agencies, to the federal government, to general employers, and to labor unions. The protections of the act do not apply to independent contractors or to elected officials. Under certain circumstances, states may be exempt from paying monetary damages.
Not every employee is protected. Individuals that are classified as being in "high policy-making positions" who can expect to earn $44,000 a year in benefits following retirement can be required to retire at 65. Also, exceptions exist for police officers, firefighters, federal employees that work in law enforcement and air traffic control, and tenured university faculty. In addition, if a job position requires an employee to look a certain age, then an exception exists. This exception is known as a BFOQ which stands for Bona Fide Occupational Qualification. The BFOQ allows an employer to choose a model or an actor based on age if being or looking a certain age is a significant portion of a part. An example would be choosing a 10 year old actor over a 12 year old actor to play a character that is 9 years old in a movie.
An employee does not have to be fired or passed over for a promotion for age discrimination to exist. If an employer retaliates in any way against an employee who has filed a claim against the company or filed a claim against the company claiming age discrimination, this also violates the ADEA. An employer also may not include any age limitations, specifications, or preferences in any job notice or advertisement. Apprenticeship programs, including joint labor-management programs, may not discriminate based on an individual's age as well.
There is nothing to prevent an employer from asking an applicant's age in an interview or on any form. This practice, however, commonly discourages older applicants from applying for the job. Whenever a claim is raised against a company, if the employer is known to ask for an applicant's age then the company will be more thoroughly scrutinized. This is done to ensure that the age information is not being used in an illegal manner.
When a younger person is hired for a company over an older person for salary reasons then this is not classified as age discrimination. A young person generally has less salary history and may be a cheaper employee than someone with 20 years in the industry. When a younger person is hired for salary requirements and age just happened to be part of that, then the practice is not prohibited.
As in many other areas of the law, there are many loopholes. Contacting an experienced Orange County Employment and Labor Attorney such as Perry Smith can help to eradicate some of the uncertainty associated with employment disputes.