Lay-offs because of Covid are an opportunity for some employers to try to get away with illegal age discrimination. They are hoping to "lay off" their older workers and replace them with younger employee right away or after a short period of time under the guise of slow business and challenging economic times. This is especially temping during harder economic times, when so many employer wish they could replace higher paid workers, with more junior workers for a significantly lower pay.    

The signs of age discrimination in these types of layoffs are similar to that in any other layoff:

(a) you are the oldest worker in your group or you are substantially older than most others (you don't necessarily have to be the oldest one); 
(b) you have been performing your job well or even better than anyone else, and/or you have been employed with the company for a long time or longer than everyone else in your team;  
(c) you are the only one who has been selected for the lay-off, or the employee who have been selected for to be laid off are generally older than others; 
(d) the criteria provided to you by the employer as to how they selected who will be laid off either doesn't makes sense or is simply untrue. 

If two or more of the above factors are present in your situation during the supposed Covid related lay-off, age discrimination might be at play in your layoff. 

Generally, you cannot sue your employer for something that might happen but hasn't happen yet. Thus, even if you are absolutely sure that you will be illegally fired because of your age, you can't file a claim for wrongful termination and age discrimination in court until your employer actually terminates your employment. However, there are at least three things you can and should do to enhance your potential case while you are still employed there:

(a) Continue doing the best job you can, so that any argument that the reason for your termination is your performance becomes week and unconvincing.  Poor performance is one of the employers' favorite excuses for terminating an older worker, so the better your performance is, the harder it will be for the employer to defend the case. 

(b) Keep track of all the older people who are being "laid off" or replaced with younger ones. Find out ages of those who are fired and hired. This will help you determine whether there is a clear pattern of discriminating against older workers. This can be very useful in proving your age discrimination case in the future. 

(c) Pay attention to any of management's statements, e-mails or postings on social media or anywhere else that in any way suggest that they prefer to hire and keep younger employees over older ones. Ask your co-workers if they have heard anything about the employer's attempts to get rid of older workers or about the company's strong preference for hiring younger employees. This type of evidence, even if it's just one e-mail or one statement, can make a difference between having no case and having a case, and between having a weak case v having a stronger case. 

Here is a typical situation that so many older employees face.  You have faithfully served your employer for years and you have been consistently receiving good performance reviews. Lately, however, you can just feel how your (new) management is trying to push you out. They are looking for any reason to write you up or suspend you for petty reasons or no reason whatsoever. You realize that your days are counted. You want to fight to save your job but you are not sure how. 

The reality is that there is not much you can do to physically prevent your employer to not fire you. As an at-will employee, not only can they choose to terminate you for any reason or no reason, but they can also choose to violate the law by terminating you for discriminatory or retaliatory reasons, and deal with any legal consequences later. While a court/jury may award money damages to compensate you for your lost wages, emotional distress, etc., no one can force your employer to take you back once they fire you.  

However, even though you can't prevent your termination, there are three things you can do to enhance your potential age discrimination and wrongful termination claim:  

1. Seek specific feedback about your alleged performance issues. 
Ask nicely but persistently what's wrong with your performance and how you can improve it. The employer's vague responses to these kinds of request or no request at all will be one kind of evidence you will be able to use to show that the alleged performance issues were just an excuse for firing you because of age. 

2. Be nice to your management at all times. 
Do not create any evidence of insubordination in person or in writing, as this will make any wrongful termination claim much harder to prove. This is because if your employer has a legitimate reason to terminate you, such as insubordination, misconduct, policy violations, etc., proving that the real reason for your terminating was something else will be much harder. All your interactions and e-mails have to be polite, civil and free of any threats or signs of entitlement on your part.   

3. Consider complaining about discrimination to your employer or EEOC/DFEH.   

If you complain about age discrimination to your higher management or HR in writing and/or to EEOC/DFEH, and your employer fires you shortly after, you might be able to bring a retaliation claim in addition to discrimination claim to make your case stronger. Often, retaliation is easier to prove than discrimination. Therefore, having that extra retaliation claim can prove to be critical, especially if the discrimination claim turns out to be weaker than you thought or if it is dismissed altogether on summary judgment. Make sure you check out the discrimination/harassment complaint sample form that will be helpful to you in drafting your complaint to HR/management or EEOC/DFEH. 

A Fresno recently awarded nearly $750,000 in damages to a former Farmers Insurance employee in an wrongful termination case based on age discrimination.

Both sides agree that plaintiff Warehime was hired to work in the Visalia office in January 2002. At the time, the company was going through a transition from paper files to electronic files. During the trial, Farmers' attorney told the jury that Warehime never embraced the new technology and rejected training to become a better employee. When workload backed up on her, he said Warehime "blamed others for her problems."
The employer's attorney further said Farmers had good reason to terminate Warehime:  she was low-balling customers on their claims, which led to costly litigation for the company.

Toole, Warehime's attorney,  showed the jury evidence that Warehime had been a valued Farmers employee: she did the training requested by Farmers and the company honored her with awards and good to outstanding job-performance ratings each year from 2002 to 2005. "She was a committed team player and good with customer service," he told the jury. Toole said the climate began to change in the summer of 2003 when Warehime learned that one of her Fresno supervisors "wanted to hire his own people." Warehime was given higher caseloads than other employees, and when an employee left the company, she was given those files, too, Toole said. She asked her supervisor to balance the workload, "but nothing happened. No files were reassigned and she continued to drown in these files," Toole told the jury.

Things got worse for her, Toole said, because the Fresno office was filled with young, hip employees, Toole said. Warehime started hearing thing like: "I don't want to work when I'm your age" and "The old fuddy-duddy is coming in." In October 2005, Plaintiff complained to her supervisor that an evaluation of her work was inaccurate and unfair. The supervisor responded by telling her to improve her performance.

The stress became so intense, Warehime suffered a mental breakdown in February 2006, forcing her to take a leave of absence while her doctor treated her from depression and anxiety. Warehime's doctor cleared her to return to work on June 12, 2006. But when she showed up to work, a young man was sitting at her desk, and Plaintiff soon found out that she was fired.

This case involves a common combination of age discrimination and disability discrimination / failure to honor medical leave to which an employee is entitled under ADA/FEHA or FMLA.

Age discrimination at workplace is one of the harder claims to prove in court, because although many employer tried to get rid or not to hire older workers, obtaining proof of such discrimination is often a big challenge. Nevertheless, because the courts are aware of how easy it would be for employers to get away with firing or nor hiring or not promoting older workers, judges heavily rely on circumstantial evidence of discrimination in allowing cases to move forward to trial on age discrimination claims. 

For instance, in Shelley v Green (2010), an older employee was not given an opportunity to be promoted while several others, younger ones, were. In making a favorable ruling to the employee, the court took into account a number of facts that suggested that age discrimination might have been involved in the decision not to promote the plaintiff.

First and foremost, the court considered the fact that the managers, who interviewed the potential candidates for promotion, inquired bout the projected retirement dates for employees to be a significant evidence of of potential discrimination, as that suggest that the issue of age was a relevant factor in promotion decisions.

Secondly, the fact that the plaintiff's qualifications were far superior than those who were selected for promotion, suggested to the court that an improper and unlawful discriminatory reason played a role in not selecting the plaintiff for promotion.  

The employer argued, among other things, that age bias cannot be inferred from not promoting plaintiff, because other employees of similar age were interviewed for the same promotion. However, the court found that because none of those who were interviewed were actually promoted, that argument was not persuasive.