If you are an employee who is over the age of 40, the law protects you from age-based employment discrimination. California State laws protect older employees, as does the federal Age Discrimination in Employment Act of 1967 (ADEA). The Older Workers Benefit Protection Act (OWBPA) amended the ADEA in 1990 and offers even more rigorous protections for older workers. For example, under the OWBPA, employers may not exclude older employees from benefits offered to younger workers.
Despite state and federal statutes prohibiting it, age discrimination is prevalent in the San Francisco Bay Area. Employers often look for excuses to terminate older employees so they can replace them with younger, less expensive workers. Sometimes ageism is subtle; suddenly, you may find yourself with fewer reports, a smaller territory or lower-profile projects. At other times, discrimination may be blatant; you may start receiving negative evaluations that lack substantiation. But regardless of the overt behavior, if the underlying reason for the adverse employment action taken against you is your age, your employer has broken the law.
What does age discrimination look like?
The following are some examples of age-based employment discrimination:
- Pressuring an older employee to retire whether by constantly asking when he or she plans to do so or by threatening to fire the employee if he or she does not retire
- Forcing an older employee to retire
- Cutting older employees with the highest salaries before younger employees
- Promoting a younger person rather than the older worker
- Making comments about wanting “fresh faces” or “youthful energy” in the office
- Refusing to hire an otherwise qualified employee based on his or her age
- The boss consistently socializes with younger workers or gives them the best job opportunities, or otherwise displays a preference against older employees
- Not permitting an older employee to learn new skills or attend training
An employer may not:
- Fire a female employee because she is pregnant
- Refuse to hire an otherwise qualified woman because she is pregnant
- Require a pregnant employee to bring a doctor’s note verifying her inability to work when other employees are not required to follow similar protocol if they are injured or ill
- Fail to restore an employee who just returned from pregnancy leave to her former position or one like it
- Treat an employee differently because she is pregnant, including demoting her, decreasing her hours, or removing privileges / responsibilities
- Enact a rule that employees may not return to work for a certain amount of time before or after giving birth
- Penalize an employee who takes time off for prenatal doctor appointments when other employees are not penalized when they leave for medical reasons
- Ignore an employee who is otherwise qualified for a promotion or pay raise because she is pregnant
Under the Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) employers are required to make reasonable accommodations to allow a disabled person who is otherwise qualified for a position to do the job. Employers must not discriminate against disabled individuals who can perform the required job responsibilities simply to avoid the costs of accommodation. The law also prohibits harassment in the workplace on the basis of an employee’s disability.
What does disability discrimination look like?
Discrimination against a disability or perceived disability may occur in one of numerous ways. In some instances, a manger or executive may make a derogatory comment about an employee’s disability and subsequently penalize them; although it may be claimed that the employee’s disability had nothing to do with the decision to admonish their work performance, the inappropriate comment would indicate otherwise. One of the most common ways disability discrimination manifests, however, is when an employee will not accommodate a disabled employee within reason, which causes them to fail at essential job functions as described in their employment contracts.
When an individual is treated differently based on their sexual orientation, it is considered discrimination. This may occur against individuals who are homosexual, heterosexual, or bisexual. There have been more and more cases of this type of discrimination coming forward in the workplace. It can occur in recruitment, hiring, promotions, and even job training and assignments.
California has made significant strides in protecting the rights for or lesbian, gay, bisexual and transgender individuals, yet many LGBTQ individuals have faced wrongful termination or constructive discharge due to their sexual orientation. Still others have been unable to continue working because a hostile environment makes work intolerable.I understand the importance of protecting and enforcing the rights of individuals, who because of their sexual orientation, often face unfair treatment.
It is important to understand that discrimination can often be subtle. If you have repeatedly been passed over for a promotion when less qualified, straight people have not, or if you have received poor evaluations for minor or trivial things, these may be discriminatory behaviors that would give rise to a viable claim for sexual orientation discrimination. It is equally important to understand that if you have filed a complaint with your human resources department or supervisor and then have been punished for making that complaint, you may also be the victim of retaliation, which is also illegal.