San Francisco Age Discrimination Lawyer

You may have caught the NPR story a few years ago about “older Americans.”   Baby boomers are living vigorous, vital lives, both inside and outside the workplace.   Unfortunately, not everyone thinks that’s a good thing. As I reported a few weeks ago from the ABA conference in Tel Aviv, age discrimination claims are on the rise is all sorts of jurisdictions. Nowhere is ageism more ubiquitous, however, than here in San Francisco and Silicon Valley. The high tech sector is notorious for favoring youth over experience. The prejudice is everywhere and you don’t have to look too hard to find it.

What To Do If You’ve Been Discriminated By Age

So what can you do if you feel you have been discriminated against because of your age? Knowing your rights under the law is a start. Both federal law and California law prohibit employers from discriminating against workers over 40. The federal law, known as the Age Discrimination in Employment Act (or “ADEA”) makes it unlawful for an employer with 20 or more employees to use age as a negative factor in hiring, promotion, or any other term or condition of employment.

Proving Age Discrimination

The U.S. Supreme Court has made proving age discrimination under the ADEA challenging. In a 2009 decision, the Supreme Court held that (unlike every other type of discrimination) it is not enough for an employee claiming age discrimination to show that bias was a “motivating factor” for the job action. Rather, the employee must prove that age bias was the determining factor in the adverse employment decision—i.e., that the decision (failure to hire, failure to promote, or discharge) would not have been made “but for” discriminatory animus.

Determining Damages

Damages for age discrimination are also limited under federal law. Emotional distress damages and punitive damages are not possible. However, an employee who proves discrimination in violation of federal law is entitled to an award of “liquidated damages” equal to the lost wages she recovers. So, if a victim of age discrimination is out of work for a year and loses $200,000 as a result of an unlawful firing, she can recover $400,000 from her former employee should she prevail in her claim.

California Law Is More Employee Protective

Not surprisingly, California law is much more employee-protective than federal law. The California Fair Employment and Housing Act (“FEHA”) applies to all employers with five or more employees.  Under the FEHA, an employee pursuing an age claim need only prove that age bias was a motivating factor in the adverse employment decision. And an employee who wins her age discrimination case is entitled to the full range of compensatory damages (including payment for the emotional distress and humiliation caused by the discrimination), as well as punitive damages.

Consult An Attorney

Employees often ask “how do I prove age discrimination?” The answer is that age bias can be proved through anecdotal evidence (for example, ageist comments) as well as through statistics (for example, data showing that older workers are denied promotions or laid off at disproportionate rates), or a combination of both. Of course, in age bias suits, as in most employment cases, the key evidence of discrimination will be in the company’s possession. Thus, a successful age discrimination suit requires skilled counsel who can obtain the evidence from the company in discovery. If you believe that age played a factor in unlawful practices against your, contact us and set up a free consultation to discuss the specifics of of your case with a member of our skilled team.