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Age discrimination is an insidious part of the modern business culture. Which is why we have had to make laws against it. Age discrimination occurs when a manager favors younger employees over older ones. Usually based on the stereotypes that all old people move slower, work less, are technically inept, or won’t have many years to work.

It is illegal for employers to make hiring, firing, raise and promotion, demotion, or work assignment decisions that consistently disadvantage older employees. Sometimes age discrimination is obvious because an employer makes their motivations clear. Other times, cases of apparent age discrimination may turn out to have other causes. Like a work performance issue, or even accommodating an unmentioned health problem.

If you have seen or experienced age discrimination in your workplace, you can make it right. But first, you’ll need to investigate and confirm your evidence. Part of that is understanding exactly how age discrimination is defined and how that relates to real workplace situations.

How Old Do You Have to Be for Age Discrimination?

Age discrimination applies specifically to employees over 40, who may be judged to be less valuable than younger employees. This is most often identified with patterned decision making and voiced prejudices about how older people can’t ‘commit’ as fully to a job as younger employees can. Or that they cost more to insure. Or that they will call in sick more. Some employers have even been known to fire employees who get too old.

Discrimination is defined as favoring younger employees over someone who is 40 or over in hiring, management, and firing decisions. The key here is that the subject of unfair decision making is over 40. And that their age can provably be cited as the cause.

Does the Age of My Manager Matter?

A lot of people wonder if the age of their manager matters in a case of age discrimination. You may think that if your manager is over 40, that they are less likely to be considered discriminatory. Or that if your manager is under 30, that they’re more likely to be seen as discriminating. But the law is absolutely clear.

The age of your manager does not matter. It is a common fallacy to think that if someone can’t really be discriminating if they are of the same category. That a short manager won’t continue the workplace trend of favoring tall people. Or that someone with a learning disorder can’t make fun of someone else with a learning disorder. This has been proven false in the courts many times, so the law does not consider the age of the perpetrator when judging whether discrimination has occurred.

Is It ‘Age Discrimination’ If I’m Under 40?

You may also wonder about cases where the discrimination is clearly going the other way. That older employees are being favored even when they have lesser skills and qualifications. While this is linguistically still discrimination based on age, it is not considered illegal by federal or California law. If the subjects are not 40 or older, then the law will not step in to stop age-biased decision making.

That said, you may be able to prove discrimination based on other legally actionable factors if age bias is already at play. Also, if there is a pattern of age discrimination, not all the subjects have to be over 40. If some targets are in their late 30s, this will not disqualify your evidence of discrimination.

What About My Older Coworker?

You may have found yourself at this article of a colleague of yours appears to be facing age discrimination. It’s not uncommon to want to speak up for someone if you can see — from the outside — that they are being treated unfairly compared to younger peers. It is noble for you to want this and you can absolutely take steps to correct your employer’s mistreatment. But first, you should make sure the situation is really discrimination.

There are many reasons why someone might not be seeing as many raises, promotions, or overtime hours as their peers. They might have chosen not to ever go into management, therefore seem to be ‘held back’ from the outside. Or they might have negotiated a unique employment contract that involves a different set of incentives and rewards. They might have a health issue or demands at home that are being accommodated, resulting in fewer hours and assignments.

When preparing to ride in as someone’s champion, be aware of the details of the situation. But if you see a pattern of discrimination against multiple employees, it’s much more likely to be a real systemic problem with your employer.

You don’t have to take workplace discrimination of any type lying down. Even the systemic bias against older workers that has always been a part of the business world.

At Aiman-Smith and Marcy, we focus our legal work on helping employees stand up to their employers and defend their rights no matter how big or small your workplace may be. For more information or a consultation on your workplace situation, contact us today!

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