Age discrimination lawsuits are among the most common frequently filed claims against employers. In fact, in 2012, of the 99,412 individual charges filed with the U.S. Equal Employment Opportunity Commission (EEOC), 22,587 (or 23%) of those charges alleged age discrimination. According to the EEOC, which is the agency responsible for enforcing federal laws dealing anti-discrimination laws, California ranks the third highest among states for EEOC claims filed, with 7,399 employment discrimination claims filed in 2012. Notably, these numbers do not even include the charges filed with California’s Department of Fair Employment and Housing. (DFEH) Back in 2010, of the 18,335 employment cases filed with California’s Department of Fair Employment and Housing, one-fifth cited age discrimination.
Importantly, the number of age discrimination claims filed may continue to increase as the workforce is aging. According to the Bureau of Labor Statistics, the median age of working Americans is 40 or older, which is notable since both the Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act prohibit protect individuals who are 40 years older from discrimination against employers. Although age discrimination cases tend to be harder to prove than other forms of discrimination, as illustrated by a recent court decision by the San Francisco Superior Court, these lawsuits can still prove quite costly.
In 2010, fifteen veteran and retired firefighters filed suit against the San Francisco Fire Department alleging age discrimination under FEHA. They claimed that a written test given in 2008 for promotions to lieutenant had “irregular and/or questionable” issues relating to the preparation and scoring of the exam. More specifically, the firefighters alleged that the test’s answer key contained faulty information and that test scores were changed by the grading officials in secret. In addition, the plaintiffs were also under the impression that the examination would be administered orally and allegedly prepared for the exam based on this belief. Of the 745 firefighters who took the lieutenants exam, less than one-third passed.
The group of firefighters who brought suit noted that most of the successful candidates for promotion were less than 40 years of age and filed suit alleging that the San Francisco Fire Department discriminated against them based on their age when it was determined they each failed a promotional exam. Plaintiffs argued that the younger firefighters, having been in school more recently, were more savvy writers and test-takers and were predisposed to performing better on the exam. A San Francisco jury agreed, and, on October 28, 2013, awarded the 15 firefighters $3.7 million. This is just for one in a string of lawsuits filed against the City of San Francisco with respect to the Fire Department’s promotional exams, but this was the first to go trial.
At the federal level, the ADEA prevents employers with 20 or more full-time workers from discriminating in employment against workers aged 40 or older, and makes it unlawful for an employer to discharge any individual or otherwise to discriminate against any individual in respect to his or her compensation, terms, conditions or privileges of employment. Under California’s FEHA, the law is more expansive, covering all California employers, including state government employers and private businesses, regardless of size. However, despite the recent victory by the plaintiffs in the case described above, it is often difficult for plaintiffs to prevail in these cases because, at least at the federal level, plaintiffs have to come up with convincing evidence that age was the only factor in the employer’s decision to fire, demote, or refuse to hire the employee.
If you are involved in a potential age discrimination lawsuit, contact the Bay Area employment litigation attorneys at the Law Offices of James G. Schwartz today. We have defended businesses against employee claims of discrimination and have also counseled individual workers or groups of employees who believe an employer has wronged them.
Jury finds age bias in S.F. firefighters’ test, by Jaxon Van Derbeken, The San Francisco Chronicle
S.F. firefighters’ promotional test on trial, by Jaxon Van Derbeken, The San Francisco Chronicle