California is known for its very competitive corporate landscape, especially in the tech industry. Los Angeles is no different. While entertainment and media are the biggest industries in the area, tech comes second. Age discrimination is a problem in those industries.
Older workers have more experience, but they also have higher salaries due to longevity. Their health insurance costs are higher, and they may need to work more slowly or take breaks from standing for long hours. This drives companies to find ways to get them to quit.
When an older worker isn’t ready to retire, employers may quietly phase them out. As age discrimination is a federal protection and the California Fair Employment and Housing Act (FEHA) applies to companies with five or more employees, HR departments need to tread carefully.
To circumvent the law, companies are devising ways to get older workers to leave without being fired and facing age discrimination lawsuits. Discover the tricky ways companies are pushing older workers out and how you can fight back.
Quiet Pushing Is Trending
Quiet pushing is a business practice in which working conditions change in some way. It might be the psychological environment shifts, or a worker is given tougher production runs while co-workers continue to get gravy.
Eventually, the employee reaches a breaking point and resigns. The employer can reduce payroll and hire lower-paid workers without triggering an age discrimination lawsuit.
An AARP survey found that 22% of older workers feel that they’re being pushed out of their jobs. Two out of three workers have witnessed or experienced age discrimination in the workplace.
For Californians who’ve reached age 40 or older, it’s important to understand how quiet pushing happens and how to stop it from forcing you to quit before you’re ready.
Tactics Used in Quiet Pushing
When a company wants to remove an older worker without blatantly firing them, they don’t move quickly. Instead, they make smaller moves over months, and those moves are designed to change the worker’s role in the company.
Creating Unsatisfactory Performance Ratings
Performance ratings are used to measure how well an employee performs in their role, and they’re among the more common ways to enact quiet pushing. The worker has received stellar performance reviews for years, even decades, but suddenly, the managers say performance is worsening.
They establish a written plan for improvement that’s impossible to achieve. If the employee doesn’t improve, they’ll have no choice but to let the worker go. The worker does everything possible to improve and eventually quits rather than continue to be pressured to meet impossible goals.
Demotion Due to Restructuring
The company’s leaders announce they’re restructuring the business. In the process, they assign younger workers duties identical to those of older workers. Now that the roles are redundant, the older workers have had their budgets and responsibilities reduced. They may be assigned useless, tedious, meaningless projects.
Isolation on the Job
Sometimes, an employer starts to exclude older workers from essential meetings, online channels like Slack, or team-building exercises. An older worker might be assigned to a new office farther from management and other employees.
In time, the exclusion impacts the older employee’s well-being at work. It also affects their visibility within the company, which is essential for job performance ratings and opportunities for raises or promotions.
Reducing Job Duties, Hours, and Wages
If an employee refuses to leave despite isolation or other tactics, employers may target their financial needs. An older worker may be expecting a yearly bonus, only to learn they no longer meet the requirements to receive it.
For a salesperson, commissions may suddenly be capped at an unaffordable level. The profitable sales territories are handed to newer employees. Cost-of-living raises may be reduced or eliminated entirely, even though other workers received them.
A branch manager might learn that the job’s hours are being reduced from 9 to 5 Monday through Friday to Monday, Wednesday, and Friday. The branch manager is losing 16 hours of pay a week.
Under California law, reducing pay or withholding bonuses from an older worker while providing them to younger workers is a direct violation of the Equal Pay Act. You need to file a complaint.
Refusing Training or Professional Development
A company might prey on the stereotype that older workers are not strong in technology. The company shifts to a new software platform and refuses to offer software training programs to older employees. Those older managers might be expected to quickly master advanced functions on new 3-D printers without any professional development courses.
.Meanwhile, the younger workers aren’t held to the same standards. Their older manager has to train them, putting the urgency on the manager to learn things quickly or let the team down.
Tips for Identifying Age Bias
Age discrimination is illegal, so California businesses use those tactics to push older workers out. To quickly identify age bias, look for certain words and phrases. They’re not a guarantee that age discrimination is occurring, but many cases of age bias included phrases or words like these.
- Digital natives: We want younger employees who grew up using the technology we use.
- Early career professional: We’re looking for workers just starting out.
- Fresh or high energy: We want a younger workforce.
- Good fit for the work culture: They want office workers or teams to align with the younger demographic the company serves.
- New college graduates: Most new grads are in their early 20s and therefore youthful.
- Overqualified: The company is concerned that, given your experience, your salary requirements are too high. They’re aiming for younger, less expensive workers.
- Set in their ways: Denotes rigidness and unwillingness to change due to age.
- Tech-Savvy: Younger adults have grown up relying heavily on tech.
California Discrimination Laws vs. Federal Protections
California workers are backed by some of the strongest in the nation. They exceed federal protections.
Federal age discrimination laws apply to companies with 20 or more employees and prohibit compensatory and punitive damages in age discrimination complaints. Only “liquidated damages” are allowed, and they’re limited to cover back pay.
California law applies to companies with five or more employees and allows punitive and emotional damages.
The burden of proof in federal courts falls onto a “but-for” cause. You have to be able to prove that age was the absolute cause of the discrimination. In California, the standard is “substantial motivating factor,” meaning that age need only play a role for the employer to be liable.
California Workers Need to Know About Constructive Discharge
You finally caved and left your job. You handed in your resignation, and your company feels they won. You left. They didn’t fire you. California recognizes “Constructive Discharge” in discrimination cases.
Constructive discharge occurs when an employer allows or creates working conditions that are unbearable and continuous. They’re so constant and intolerable that the person feels no choice but to resign.
California law considered constructive discharge to be equal to wrongful termination. Signing a letter of resignation doesn’t protect them from an age discrimination lawsuit.
How Do You Prevent Quiet Pushing?
If you believe your employer’s management is trying to push you out, don’t react or immediately quit. Instead, start building your defense.
Collect Proof
Gather a paper trail that includes dates/times you were excluded, assignment changes, witnesses who were present when odd comments were made, and as many past performance rating reports as you can get hold of.
Provide HR With a Written Objection
When you get a performance review you know to be false, write an objection and send it to HR. Don’t react emotionally; instead, lay out the discriminatory acts you’ve experienced, such as being called a “boomer” or “dinosaur.” This letter provides you with whistleblower protections, so keep track of any retaliation you experience as well.
Consult an Employment Attorney
Contact a California employment attorney ASAP. Don’t wait to be pushed out or handed a severance package. A qualified California employment law expert looks over your documentation, discusses your legal rights, and informs you of the next steps to take.
Shegerian Conniff informs you if you have a valid complaint and helps you take the next steps. Reach us immediately for a free consultation.
