at will employment
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At Will Employment
Frequently Asked Questions: Age Discrimination?
THOMAS C. WALKER, ESQ.
3000 El Camino Real, Suite 20o
Palo Alto, CA 94306
Employment Law Practice
Was I the victim of unlawful age discrimination in employment?
If you think you were subject to adverse employment action because of your age, you are probably right.
So, that means I should sue?
Hardly. The most recent Equal Employment Opportunity Commission statistical report I've reviewed appears to suggest that 70% of age discrimination charges are dismissed for "no reasonable cause" and a mere 7% are settled by the EEOC. Now, these nominal EEOC settlements are not particular noteworthy or respected by plaintiff's attorneys, but that 7% figure is among the lowest settlement figure they publish. And, what about our EEOC litigating age discrimination/ADEA lawsuits on behalf of our older citizens? - EEOC sponsored age discrimination litigation occurs in about half of one percent of the cases it receives from charging parties. That's .05 times the number of federal age discrimination claims made by our citizens.
So, that means I shouldn't sue?
No, that's not my point. I have been successful in age discrimination claims on behalf of clients, other attorneys have as well. The point is these legal claims are much more difficult to develop as mertitorious and pragmatic legal claims and to support through demands, challenges and litigation. You need a realistic assessment of the cost, ongoing burden on your time and effort investment, and the definition of success.
HR said it was because of my skill set?
Employers argue it's not really ageism, it's a failure by these current or prospective employees to demonstrate they can adapt, learn new skills and are willing to be held accountable - and that technology companies prefer to recruit from college. Personally, I find this argument so vacuous that it not worth discussing. Take a look at the average employee age of some or our leading technology/social media company employers, (Google, Facebook, Apple, etc.) and tell me this is solely because they like to recruit from colleges or only young people want these jobs and employers find them so "responsible". If you are 40+, you best look elsewhere.
How can our California Courts allow this to occur; what if I decide to sue?
The simple answer is: it's pretty darn hard to prove age discrimination in employment unless the employer sends you a letter that says "You're too old to work here". Without that letter, or some other "smoking gun", age discrimination seems to be a matter of opinion. Then again, what might happen in the real world is an older worker will be the butt of various slurs, remarks, and negative / harassing comments are made by younger co-workers and managers - - and that tells the real story pretty convincingly, correct? You would think this would be the next best evidence ... but until a fairly recent California Supreme Court case it appeared it was no evidence at all to get your case to trial. The "stray remarks” doctrine was first mentioned by United States Supreme Court Justice O’Connor in a concurring opinion in 1989. Price Waterhouse v. Hopkins, 490 US 228, Justice O’Connor stated that unlike direct evidence of discriminatory animus, stray remarks, “standing alone” do not suffice to prove a age, gender or racial bias that can make a prima face case of discrimination. In other words, a manager - not performing a performance review, job interview, or firing someone - might refer to you as a "b*tch", "n*gger", "cripple" or "old fart", and that doesn't contribute to tangible evidence of any particular discriminatory bias against you. Really! Perhaps I am over-simplifying somewhat, but the federal circuit of courts have shared the opinion that these remarks may stand-alone from the proof necessary and connecting the discriminatory intent to the adverse employment action. If you find this rationale simply irrational, join our club. Our California Supreme Court, Brian Reid v. Google, Inc., 235 P.3d 988, 50 Cal. 4th 512 (Cal. 2010), broke through this nonsense by stating that an age-based remark, even it it is not made directly in the context of an employment decision or uttered by a non-decision-maker, may be relevant, circumstantial evidence of discrimination. For example, being called “slow,” “fuzzy,” “sluggish, ”lethargic”, “old man,” “old guy,” "old fuddy duddy” “obsolete” and “too old” by coworkers and managers might actually be relevant evidence to show a discriminatory bias in the workplace and an animus directed at you! Common sense, if an employer refers to you as the "slow, old guy"...there's a problem.
Do I have any viable tactics/options?
There are ways to make you more fireproof by protesting treatmen that appears to be motivated by age. If older workers would protest, and do it formally, these unlawful and too common employer practices of ageism would change. Afterall, it will be the righteous indignation of older workers, their legal cliams, and our boycotting companies that actively engage in any form of unlawful discrimination that will affect change. At a termination event, accusations of ageism can be powerful leverage in severance negotiation. Keep good notes, and make written protests. Talk with an attorney about filing a DFEH claim.
THOMAS C. WALKER, ESQ.
4990 Hopyard Road, Suite 100
Pleasanton, CA 94588
For legal advice, consult your lawyer (or hire me) ! This is general information only; not guidance for your particular situation.