The Fair Employment and Housing Act (FEHA) and the Age Discrimination in Employment Act (ADEA) both prohibit employers from discriminating against employees that are 40 years of age or older. Discrimination can take on many forms, but basically, any time an employee is treated unfavorably because they are over the age of 40, it is considered age discrimination.
FEHA is a state law enforced by California’s Department of Fair Employment and Housing (DFEH), whereas ADEA is a federal law enforced by the Equal Employment Opportunity Commission (EEOC). The state law protects more employees in California because it applies to any business with five or more employees, whereas the federal law only applies to employers with 20 or more employees.
Mandatory Retirement & Age Discrimination
In California, a private employer that forces someone to retire simply because they are over the age of 40 is violating age discrimination laws. Employers are also prohibited from including mandatory retirement terms within an employee’s retirement plan, pension plan, employment contract, or any other type of agreement. For example, an employer cannot include a term in a collective bargaining agreement that states the agreement is only valid if the employee agrees to retire once they reach the age of 50.
When is Mandatory Retirement Acceptable?
Mandatory or forced retirement is not considered illegal in very few situations. Employees that are least 65 years old who have served in a high-level executive or policymaking position for at least two years may be forced to accept mandatory retirement. However, the mandatory retirement is only legal if the employee will receive a benefit from the employer immediately after retiring. The benefit must be at least $27,000 and must come from deferred compensation plans, profit sharing plans, pensions, or savings. If these conditions are not met, employees in these policymaking positions cannot be forced to retire once they are 65 years old.
Employees who are at least 70 years old and who are physicians currently employed by professional medical corporations can also be legally forced to retire. The mandatory retirement of tenured professors at universities and colleges is also permitted under most circumstances.
Finally, employees can force an employee to retire at a certain age if the employer is able to prove that age is a bona fide occupational qualification (BFOQ). To put it simply, this means the employer must show that employees above a certain age can no longer perform the duties of the job successfully or safely.
For example, let’s say an airline company has determined that a pilot’s ability to fly a plane safely and successfully typically starts to decline when the pilot reaches the age of 65. If this is true, the airline can force a pilot who is 65 years old to retire since age is a bona fide occupational qualification. If the airline allowed the pilot to continue to work, they may be putting other people’s lives in danger since the pilot can no longer perform the duties of his job.
Many employers may try to use the BFOQ defense, but it’s very rarely successful. This is partly because it is difficult to prove that all people of a certain age are unable to perform the duties of the job. The burden of proof also falls on the employer if the BFOQ defense is used, whereas the burden of proof in other age discrimination claims falls on the plaintiff.
Alternatives to Mandatory Retirement
Employers know that it is illegal to force an employee to retire in most cases. Because of this, they often look for other ways to force an employee out of their position. But, many of the alternatives to mandatory retirement are also illegal. For instance, an employer may allow you to continue working as long as you’d like, but they may tell you that you have to transfer to a different job within the organization. This is another form of age discrimination. An employer cannot reassign an employee to a different position simply because the employee has reached a certain age.
Employers also cannot ask you to take a pay cut if you plan on working past a certain age. Pay cannot be reduced just because an employee is of a certain age, so this is another form of age discrimination.
An employer may also try to deny an employee over the age of 40 job-related benefits such as health insurance or paid time off. But, denying someone benefits that are offered to other employees solely because you are over the age of 40 is a form of age discrimination. If you are over the age of 40, it’s important to know that you should never be forced to decide between retirement and undesirable working conditions.
Is your employer trying to force you to retire against your wishes? If so, it’s in your best interest to hire an employment law attorney as soon as possible. The employment law attorneys at Shegerian & Associates will seek justice against your employer for violating your rights as a worker over the age of 40. Contact us today by calling 1-800-GOT-FIRED.