Age Discrimination: When the Employer Replaces You with a Younger Worker for Less Pay

Some Employers seem to conveniently believe that replacing an older worker with a younger woman who has less seniority and therefore can be paid less is not against the law and is not considered age discrimination, since they believe they have a valid reason for that kind of replacement – saving money. In drafting the Fair Employment and Housing Act, the California legislature addressed that specific situation, enacting Gov. Code 12941, which states that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination. It is thus likely that any employment decision based on salary differentials between older and younger workers, such as hiring, promotions, pension benefits, etc., can be challenged as age discrimination if it has a great impact on older workers as a group.

I believe that as the well known and expected trend of aging of the local San Francisco Bay Area population and the population of its workers, age discrimination and age discrimination claims at workplace will be on the rise in the next several decades. As usually, proving liability of the wrongdoer in court will be challenging, as direct evidence of discrimination such as calling an employee names suggesting age related animus is unlikely to be available, and thorough discovery of circumstantial evidence will be necessary to win such cases, such as the timing of events, replacing older workers with younger workers, and inconsistencies in the employer’s formally given reasons for terminating older workforce.