Age Discrimination in Employment

Federal and state laws, including strong California anti-discrimination laws, prohibit employers from discriminating against their employees because of their age. The federal Age Discrimination in Employment Act (“ADEA”) and California’s Fair Employment and Housing Act (“FEHA”), as well as other laws, protect employees over 40 who are victims of age discrimination. Employers may not terminate employees, select them for layoff, demote them, or deny them advancement or other privileges of employment because of their age. These laws also prohibit employers from firing or taking other actions against employees for protected activities such as complaining about age discrimination. See Retaliation Claims.

In the current economic climate, justifications for termination such as “layoffs” or “poor performance” can be pretexts for age discrimination. It is important for employees to explore whether, beneath the surface, the true reason for the termination is age discrimination or a desire for a younger or less expensive employee or work force. Employees should also consider whether the decision maker is motivated by illegal stereotypes, such as a belief that an older employee is slower, can’t keep up with the times or isn’t as sharp as he or she used to be. Lastly, even if there is some purported performance related reason for the termination, employees should consider whether they were treated differently than younger, similarly situated employees. Employees should not sign releases of claims unless and until they have determined, with the advice of a lawyer, that they are not giving up valuable age discrimination or other claims.

Siegel LeWitter Malkani has extensive experience litigating successfully on behalf of employees who have been victims of age discrimination. These successes go back for decades and continue to this day. A few examples of such cases include:

• In the 1992 case of Tetzschner v. Unitank Terminal Service (Contra Costa Superior Court), the plaintiff was awarded $1,245,000 against his employer for age discrimination and breach of contract. This was believed to be the largest employment verdict in Contra Costa at the time. Siegel LeWitter Malkani was able to convince a jury that the reason proffered by the employer for the employee’s termination (an inadvertent chemical spill) was not the real reason for his termination, but rather, it was corporate headquarters’ desire to replace an employee at the end of his career with a younger employee. Although there was no direct evidence of discrimination, such as discriminatory statements, the jury inferred discrimination based on the employer’s actions.
• In the 2005 case of Miceli v. Flowserve Corporation (American Arbitration Association), the plaintiff claimed that he was fired due to age discrimination and in retaliation for his complaints of age discrimination. During a 2005 hearing, Siegel LeWitter Malkani presented numerous witnesses and documents including two experts to rebut a lengthy laundry list of alleged reasons for the termination of our client. The Arbitrator awarded the plaintiff $1,090,000 in economic and emotional distress damages, plus interest and attorneys’ fees to be awarded, and found that the defendants engaged in contemptible behavior causing cruel and unjust hardship, entitling the plaintiff to a hearing on punitive damages.
• Even more recently, in 2010, Siegel LeWitter Malkani obtained two very significant settlements after pursuing age discrimination claims against a national retailer in two arbitrations. The clients were a salesperson and an administrative employee whom the company claimed were terminated for lack of sales and poor performance. The settlements occurred after numerous depositions were taken, a motion to compel was granted by the arbitrator requiring the employer to turn over documents about other, younger employees’ performance, and the firm defeated a motion for summary judgment.

If you believe Siegel LeWitter Malkani could provide assistance to you about possible age discrimination, please contact the firm.