California Fair Employment and Housing Act (FEHA): It is unlawful for an employer to refuse to hire; to discharge or to terminate; to refuse to select or to bar or discharge an employee from a training program leading to employment; or to discriminate against the person in compensation or in terms, conditions, or privileges of employment" because of the employee's age. Cal. Gov. Code § 12940(a).
This provision of FEHA applies to any employee of 40 years of age or older working for a qualified employer. Because it is unlawful to fire someone for having reached an age over 40 years, retirement or pension plans which require retirement at a certain age are typically unlawful as well.
In order to bring a claim for discrimination based on an employee's age, the plaintiff needs to prove that the employee:
- has reached forty years of age or older
- that the employee's job performance was satisfactory, or that the employee was qualified for the job which they were not hired for,
- that the employee was subjected to discriminatory conduct, (Ex: being discharged from work)
- and that other and younger employees (i.e., who were thirty years of age) were not subjected to the discriminatory actions of the employer. (Ex: thirty year old workers retained similar jobs, or the employee who is bringing the claim is sixty-five years of age and lost his or her position to a younger individual).
It is not always necessary to show that a younger worker replaced the elder plaintiff. Merely showing that younger individuals retained similar jobs, while the elder plaintiff lost his or hers, may be enough. Guz v. Bechtel Nat'l, Inc. 24 C4th at 367. Downsizing the work force also is no excuse for discriminating specifically against elder employees.
FEHA proscribes two types of discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her age (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees over a certain age (referred to as disparate impact discrimination). Knight v. Hayward Unified School Dist., (2005) 132 Cal.App.4th 121, 128-29 (discussing disability discrimination).
Aside from clearly unlawful cases where an employer directly explains to an elder employee that he is firing her due to her age, wrongful terminations may also be inferred from the circumstances surrounding a discharge. For instance, if an employer terminates an elder employee solely because she was unable to move at a fast enough rate, he would have terminated her for an issue directly related to her age or health. At the same time, however, in order to be successful on the claim, the employee may have to show either that moving at a certain pace was not a skill central to the performance of the job for which she was hired or that she would have been able to move at the required pace or otherwise perform the task required if provided an accommodationContact Us
If you have experienced discrimination at your workplace based on your age, contact the best age discrimination attorneys in Los Angeles at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.