Business Law Employment Law Legal Topics

Age Discrimination Claims Don’t Get Far in a Bad Economy

As the bad economic times continue, age discrimination cases are increasing in California. Although most don’t make it to a jury, when they do, the awards have been modest.

As reports,

Employment lawyers say jurors — many of whom have endured layoffs themselves — aren’t inclined to award large payouts to workers, older or not, felled by reductions in force.

In its article subtitled “In this economy, older workers may be confronting more age discrimination,” U.S. News reports that, although older workers are now “healthier, more able, and more interested in working” than ever before, common stereotypes about older workers persist, i.e., that they are “more expensive, harder to train, less adaptable, less motivated, lower performers, and less energetic.”

Age discrimination is prohibited under both federal and state law, whether it is intentional (disparate treatment) or the result of facially neutral policies or practices that are not justified by business necessity (disparate impact). See 29 USC §§621-634 (Age Discrimination in Employment Act) and Govt C §§12900-12996 (Fair Employment and Housing Act).

A problem with bringing an age discrimination claim is that evidence is usually indirect and mostly circumstantial, making courts more willing to grant summary judgment. The California Supreme Court’s recent ruling in Reid v Google (Aug. 5, 2010, S158965) 2010 Cal Lexis 7544, may be just the help older workers need to survive summary judgment. In that case, the court unanimously sided with a former Google executive who sued when he was forced out of the company at age 54. The executive claimed co-workers and managers made comments about his age, calling him “obsolete” and “an old fuddy-duddy,” and saying that he lacked new ideas, among other things. The justices declined to apply the “stray remarks” doctrine which, in federal cases, would preclude such comments from being used as evidence of discrimination unless they came from the people who hire and fire.

Even with this supreme court help, older workers bringing age discrimination claims still face an uphill battle.

On age discrimination issues, check out CEB’s Wrongful Employment Termination Practice, chap 2 (2d ed Cal CEB 1997), Advising California Employers and Employees, chap 15 (Cal CEB 2005)California Business Litigation, chap 13 (Cal CEB 2002).

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