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.
It is not a secret that many companies strongly prefer that their sales stuff consist of physically attractive individuals - be it very young and attractive women, or men with presence and confidence who are, again, young. It has been recognized for many generations in business that beauty sells, and younger, more attractive people sell more and better. However, this kind of attitude toward hiring and selection of sales people in any industry perpetuates discriminatory employment practices against older workers, thereby turning them into victims of something that is completely out of their control, and something that awaits each and every one of us - being older.
Age discrimination at workplace is prohibited by law in California. The California Fair Employment and Housing Act prohibits not hiring, termination or otherwise discriminating against potential or existing employees based on age. Of course, the vast majority of employers this day and age know better than to tell an employee outright that they terminate him because of age and they find far more subtle ways of getting rid of older workers, most common of which are fake lay-offs as a disguise for getting rid of older workers and fabricated performance issues.
There are creative ways to prove age bias and discrimination by the employer against an older employee through the so-called "circumstantial" evidence. This typically includes encouraging an employee to retire early, giving an employee age-based nicknames such as "dad" or "father time" or "oldie" or "grandpa," making such comments as "we need fresh blood in here" or "we need someone faster," or systematically replacing older workers with the younger once due to fabricated performance issues. This kind of evidence may be critical in trial or in any attempt to settle your age discrimination claim. Therefore, it's very important that you preserve as much of the documentation as possible that would reflect one or more of the above kinds of facts in order to prove your age discrimination and/or wrongful termination 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.
Fresno Jury Awards $750,000 to a former Framers Insurance Employee in an Age Discrimination and Wrongful Termination Case
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.
I have a strong feeling that age discrimination and age related wrongful termination claims will be on a rise within the next few years. This is in part because of the companies' need for increased productivity, longer work hours, and the pressure to reduce costs by eliminating the more senior and highly compensated workers as well as by saving on healthcare costs.
The other factor that may encourage companies to terminate older workers is that age discrimination is not easy to prove, to say the least. It's easy for a company to fabricate a criticism or false allegation of misconduct or insubordination to issue a couple of write ups to an older worker and make it look like he/she was terminated because of some abstract violations. Or, the company may decide to undergo "restructuring" and "lay off" certain workers, many of whom happen to be older, and then go through another "restructuring" just a few months later and higher new and much younger workers.
Luckily, the courts recognize the above tactics that companies use and they consider many kinds of indirect evidence if age discrimination, including inconsistent or untruthful reasons for termination, patter and practice of replacing older employees with younger workers, ageist remarks, etc.
See further discussions of some of the other common reasons for age discrimination at workplace.