Is it illegal to harass an employee based on their age?
California law protects employees from harassment based on age.
Because every employee’s story is different, there is no black-and-white rule for what makes a good case for age discrimination or harassment. It is best to get the opinion of an experienced employment attorney. Some of the factors courts look at include:
- How severe was the harassment?
- How often did the harassment occur?
- Did the employer know about the harassment?
- Did the employer take the necessary steps to stop the harassment from happening again?
A single event could be the basis of a discrimination or harassment case, if it is serious like telling someone they have to quit because they are too old.
Other types of harassment such as offensive “jokes” about the elderly can also be the basis of a legal claim if they happen often enough to create a “hostile work environment”— especially if the employer does not take action to stop it.
Employers have a duty to create a safe, harassment-free workplace. Generally, hostile work environment cases fall into two categories, depending on who is engaging in the harassing behavior.
If a supervisor or manager engages in age-related harassment
The first type of age-based hostile work environment claim is based on a supervisor’s conduct. If a supervisor or another management level employer is the one engaging in the harassing behavior, the employer will be held strictly liable.
If a fellow employer engages in age-related harassment
The second, and more common, type of age-based harassment occurs when fellow employees harass another worker based on their age. In this situation, an employer may be liable if:
- The employer knew or should have known about the harassment; and
- The employer failed to take any corrective action to stop the harassment.
If an employee is successful in proving that an employer failed to create a harassment-free workplace, the employer may be responsible for various damages, including emotional distress and punitive damages. If the employee was terminated because of age, they may also obtain back pay, retirement plan contributions, lost income, and attorney’s fees.