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How Do You Prove Age Discrimination Occurred?

July 12, 1998

Q: I have been a department manager with my current company for three years. During that time, my reviews have been excellent, my raises and bonuses very good. I recently turned 50, and my manager decided to reorganize things. Without any prior notice, two-thirds of the people who reported to me were assigned to another manager who had no experience overseeing engineers.

I feel that I soon will be eliminated and wonder what it would take to show that I have been a victim of age discrimination. If the company has offered severance packages to others as an incentive to leave, would it be discriminating against me if I don't receive the same package?

--T.K., Mission Viejo


A: Both the federal Age Discrimination Employment Act of 1967 and the California Fair Employment and Housing Act prohibit age discrimination. These laws protect employees who are 40 and older.

To establish that your employer is liable for violating these laws, you must show that a specific practice or policy results in age discrimination. There must be direct evidence or circumstantial evidence, such as comparing the employer's treatment of employees over and under 40.

Supreme Court guidelines state that employees over 40 must show that they were rejected for a job for which they were qualified and that the employer then continued to seek other applicants with the same qualifications. If the employer is then able to demonstrate that its decision was based on business reasons, the employee has to show that the employer's actions really were a pretext for discrimination.

If your employer refused to offer severance packages only to you and/or other employees over age 40, this would be evidence of age discrimination. However, the company may have a policy of offering severance only to employees who have been with the company at least a certain number of years or who hold certain positions.

You should investigate whether the company has a policy of offering severance to some employees rather than everyone.

If you remain concerned that you are the victim of age discrimination, I recommend you contact either the federal Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing.

--Diane J. Crumpacker

Employment law attorney

Fried, Bird & Crumpacker

Can Severance Be Tied to Waiver?

Q: I was recently laid off after a company merger.

My company had informed me that employees would receive a 60-day advance notice of the layoff date, but I was let go without this notification.

The company now maintains that as part of my job, I was required to travel to various company locations that had fewer than 50 employees. The company is refusing to pay my severance unless I sign a hold-harmless agreement waiving any legal recourse.

What are my legal rights, if any?

--J.B., Lakewood


A: Based on your description, it is unclear whether you have any legal rights.

If your employer had at least 100 full-time employees at the time of the merger and laid off 50 or more employees at one of the sites where you worked, you may have had a right to receive 60 days' advance notice of the layoff, or compensation in lieu of the notice. However, if your employment site had fewer than 50 employees, you probably did not have such a right.

If the severance pay being offered to you is in lieu of the 60-day notice required under federal law, you cannot be compelled to sign a waiver. Any waiver that you did sign under these circumstances would be invalid.

If the company did not have such an obligation, then it would be legitimate to require you to waive your rights to receive the severance pay being offered.

It's also possible that your employer was offering you severance for some other reason besides complying with the law on plant closing notices. If so, the obligation to sign a waiver depends on whether you have a contractual right to receive the severance pay being offered to you.

If your employer had already committed to pay you severance before your dispute arose, you cannot be required to sign a waiver to receive the money. If not, then you can be required to sign a waiver.

To assess your rights, it would be necessary to examine your employer's policies and procedures and handbooks for information on severance pay. You should consult legal counsel to assess your rights.

--Michael A. Hood

Employment law attorney

Paul, Hastings, Janofsky & Walker

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