November 2, 2018

You probably know that forcing out an older worker because of his or her age to hire a younger worker is illegal. But what if that younger worker who replaced the older worker is also over 40? Would that still count as age discrimination?

In California, age discrimination laws protect employees over the age of 40. But what if an older worker over the age of 40 is being replaced by a younger worker who is over 40, too? This is the question our Los Angeles discrimination attorney at JML Law has recently received from one of your readers named Tom.

Older worker replaced by a younger worker over the age of 40

“Our employer recently announced a layoff, in which more than 20 people were laid off. I was one of them. But I was the only one who was replaced, while the other jobs were eliminated by our employer. But here’s where it gets interesting. Over the past year or so, my employer has asked me multiple times about my plans for the future, hinting that it was time to retire. In fact, he even mentioned something about the “fresh blood” and “tech-savvy guys” that his company desperately needs to drive sales. Following the layoff, I found out that my position was not eliminated, and my employer actually hired a 41-year-old to replace me. And I was told that my job was being eliminated in the layoff! While age discrimination laws protect workers over the age of 40, what happens when an older employee is being replaced by a younger person who is also over 40? Thanks, my name is Tom and I’m 72.”

The preferred employee’s age doesn’t matter

Thank you for your question, Tom. You are right about California anti-discrimination laws protecting only job applicants and employees over the age of 40. “In other words,” explains our experienced discrimination attorney in Los Angeles, “If you are 39 and you were replaced by a younger worker because of your age, you will not be eligible to file a discrimination claim against your employer because only applicants and employees who are at least 40 years old are protected against age discrimination under the Age Discrimination in Employment Act (ADEA).

But let’s get back to your main question. You have a right to sue your employer for age discrimination regardless of the preferred employee’s age. Therefore, if you are 72 and are being fired because of your age, you are eligible to file an age discrimination claim regardless of whether the preferred employee who replaced you is 22, 42, or 62. Employers in California are prohibited from treating their employers unfairly or discriminating against their employees over the age of 40 on the basis of age. Period.

Comments that constitute age discrimination

Based on the comments your employer has made in the past year prior to your firing, it is a yet another indication that your employment was terminated because of your age, which is a clear violation of federal and state anti-discrimination laws in the U.S.

Our Los Angeles discrimination attorney at JML Law says that you may have a right to sue your employer for discriminating against you on the basis of age. In fact, if your job was not eliminated in the layoff, and you were merely replaced by a younger individual, you have one more proof that you have become a victim of age discrimination in the workplace.

Talk to our skilled lawyers at JML Law to discuss your particular situation. Discuss your legal options prior to filing a claim with the Equal Employment Opportunity Commission (EEOC). Schedule a free consultation by calling at 818-610-8800.