Age discrimination was seen as rampant even before Covid-19 struck. Now, as the pandemic wears on, the economic recovery stalls, and furloughs turn into permanent layoffs, older employees need to know about how they are protected.
The senior worker’s dilemma
There are more than 10 million Americans 65 and older are still in the workforce, and they are justifiably worried about both risks to their health and the risk of losing their jobs. Covid-19 is especially deadly for adults over the age of 65. Seniors are concerned about an employer’s ability to provide a safe workplace, especially if they work in public situations. Those who have been working remotely may be reluctant to return to an office for the same reason.
At the same time, however, they fear being laid off. Contrary to public perception, not all older employees have a nest egg stashed away; it could be disastrous for many if their employers were to use the economic downturn to push out them out.
Not surprisingly, employment lawyers report a flood of Covid-19-related inquiries about layoffs, firings and recalls to the workplace that may involve discrimination against older employees. Many cases also involve disability bias claims.
Federal and California employment labor law protections
Older workers are protected under a collection of federal and state statutes. Each law has its own focus and limits however. Because disputes often arise from complicated sets of facts, a California labor lawsuit often includes counts under several statutes.
In California, as throughout the country, the rights of older workers are principally protected by the Age Discrimination in Employment Act (ADEA). California employees may also have additional protections under the California Fair Employment and Housing Act (FEHA) .
The Age Discrimination in Employment Act
In general, the ADEA prohibits age discrimination against people who are age 40 or older. The law covers employers of 20 or more individuals and aspects of employment that include hiring, firing, pay, job assignments, promotions, layoff, training and benefits. It prohibits employers from excluding individuals from the workplace within that age group, even if the employer’s motive was a benevolent wish to protect employees at higher risk of severe illness.
However, unlike the Americans with Disabilities Act , the ADEA does not include a right to reasonable accommodation due to age. An employee, who is unwilling to return to the workplace because he or she is at greater risk of contracting the virus because of age, may not have the right to ask to work from home.
The law also does not protect job applicants. Consider the situation of an older employee who, in order to be eligible for state unemployment benefits, voluntarily resigns from a job rather than taking an unpaid furlough. When things improve and she reapplies for her old job back, the ADEA protections that may once have applied are now gone.
Finally, consider Mark Kanyuk’s problem. His employer said that laying him off was a completely legal economic decision. Kanyuk claimed that it was age bias and that cost was just a pretext. Proving that an employer’s given reason is only a pretext can be a complicated issue at trial.
Telltale signs of age discrimination
A layoff may be age discrimination if:
- the company made layoffs that disproportionately affected workers over 40;
- internal communications indicate that the decision may have been based on age;
- statistical evidence supports a pattern of hiring younger workers to replace older workers;
- there are indications that an employer tried to falsify a record to support its version of events, as by adding notes after the fact to an employment record or complaining about performance suddenly after a long history of successful evaluations.
California’s Fair Employment and Housing Act
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A successful lawsuit that alleges Covid-19-based age discrimination will likely rely on a variety of federal and California labor laws, as well as careful and extensively collected evidence.