Maybe your supervisor started asking when you planned to retire. Maybe you were told the company wanted someone with “fresh ideas” or a different kind of “energy.” Maybe longtime employees were suddenly being replaced by younger workers.
Then you were fired.
Your employer may give another explanation: performance, restructuring, budget cuts, or the need to take the company in a “new direction.”
Sometimes those explanations are legitimate.
But under California law, covered employers cannot fire or otherwise discriminate against an employee because they are 40 years of age or older.
If you believe your age played a role in your termination, here are some things to consider.
If you believe you were discriminated against by your employer because of your age, contact our San Diego, CA employment lawyers today.
Who Is Protected From Age Discrimination in California?
Under California’s Fair Employment and Housing Act (FEHA), age discrimination protections apply to workers and job applicants who are 40 or older.
That distinction is important. In the employment context, California’s statutory protection against age discrimination is specifically directed at discrimination against people who have reached age 40.
Age discrimination can affect more than termination. It can involve hiring, promotions, compensation, job assignments, layoffs, training opportunities, and other employment decisions.
And it does not always involve someone explicitly saying that an employee is “too old.”
Age discrimination can also emerge through assumptions about an older employee’s abilities, plans, or value to the company.
Pay Attention to Comments About Age or Retirement
Sometimes comments provide useful context for understanding a later employment decision.
For example, did a supervisor:
- Repeatedly ask when you planned to retire?
- Make jokes or comments about your age?
- Suggest that you might have trouble learning new technology?
- Describe younger employees as having more “energy” or being better suited to the company’s future?
- Suggest that the company needed “new blood,” “fresh faces,” or a younger perspective?
Not every comment about age proves discrimination. A coworker asking when you hope to retire is different from a decision-maker repeatedly raising retirement shortly before terminating you.
Context matters: who said it, when they said it, and what happened afterward.
Look at How Younger Employees Were Treated
Comparison can also be useful.
Were substantially younger employees treated differently when they had similar performance or conduct issues?
Consider whether:
- Younger employees received warnings or opportunities to improve when you did not;
- Workplace policies were enforced differently against you;
- Younger employees received promotions or desirable assignments while older employees were passed over;
- Training or professional development was disproportionately offered to younger employees; or
- Your duties were transferred to a substantially younger employee after you were terminated.
The fact that a younger employee was treated differently does not automatically establish age discrimination.
But patterns can provide context—particularly when age-related comments or other evidence point in the same direction.
Look Closely at a Layoff or “Restructuring”
Sometimes an employer says that a termination was simply part of a reduction in force.
That may be true.
But the word “restructuring” does not automatically answer the question of why particular employees were selected.
If you were terminated as part of a layoff, consider:
- Who was selected for termination?
- Who was retained?
- Were older employees disproportionately affected?
- Were your responsibilities reassigned to younger employees?
- Did the company hire for a similar position shortly afterward?
- What criteria did the employer say it used to decide who would be laid off?
California law does not prevent employers from downsizing for legitimate financial or operational reasons. But an employer cannot use a layoff or restructuring as a reason to discriminate against workers because of age.
Ask Why You Were Fired—and Compare the Explanation With the Evidence
Your employer may say age had nothing to do with your termination.
Perhaps you were told that your performance had declined. Maybe your employer wanted to cut costs. Perhaps the company says your position was eliminated.
Sometimes that is exactly what happened.
But compare the explanation with the evidence.
If you were fired for poor performance, what do your earlier evaluations say? Did your performance actually change—or did the way your employer evaluated it change? If your position was eliminated, who is performing the work now?
Look for things such as:
- Explanations that change over time;
- Sudden negative reviews after years of positive evaluations;
- Age-related comments made by people involved in the termination;
- Different treatment of younger employees;
- A pattern of older employees being terminated or pushed toward retirement; or
- Documents or messages that conflict with the employer’s stated explanation.
No single fact necessarily proves age discrimination. The question is what the facts show when considered together.
Preserve Relevant Records
If you believe your age contributed to your termination, preserve records you are legally entitled to keep.
These may include:
- Your termination letter or separation paperwork;
- Performance evaluations;
- Disciplinary notices;
- Emails, texts, or workplace messages;
- Documents relating to a layoff or restructuring;
- Relevant workplace policies;
- Communications about retirement or succession planning; and
- Complaints you made to Human Resources or management.
It can also help to create a timeline of important events.
Write down relevant verbal conversations while they are still fresh, including approximately when they occurred, who was present, and what was said.
What if Your Employer Says You Were Too Expensive?
Older employees sometimes earn more because they have accumulated years of experience, raises, or seniority.
An employer can make legitimate decisions based on financial considerations. But cost and age can sometimes become intertwined.
If an employer says your termination was part of a cost-cutting effort, look at how the decision was actually made. Was salary the criterion? Were employees selected because of age or assumptions associated with age? Were lower-paid employees retained because they were younger?
The details matter.
A company facing financial pressure can reduce its workforce. It cannot use financial pressure as a justification for selecting employees for termination because they are older.
Can an Employer Fire an Older Employee for Poor Performance?
Yes.
Being 40 or older does not prevent an employer from holding an employee to legitimate performance standards or terminating an employee for a lawful, nondiscriminatory reason.
The question is whether age played a role in the decision.
A documented performance problem that existed long before a termination may look very different from performance concerns that appeared suddenly after years of positive reviews—particularly if they coincided with comments about retirement, age, or replacing longtime employees with younger workers.
What Should You Do Next?
If you believe you were fired because of your age, preserve the records available to you and write down the sequence of events leading to your termination.
Pay particular attention to age-related or retirement comments, changes in your performance evaluations, how younger employees were treated, and what happened to your position after you left.
You do not need to determine on your own whether you can prove age discrimination before seeking legal advice.
An experienced Los Angeles, CA employment attorney can review the circumstances of your termination, the employer’s explanation, how other employees were treated, and any patterns suggesting that age may have influenced the decision.