FEHA prohibits harassment based on an individual's age. Cal. Gov. Code § 12940(j). In addition, age-based harassment is also forbidden by the Age Discrimination in Employment Act (ADEA).
The FEHA provision applies to any employee of 40 years of age or older working for a qualified employer. The key criterion for an age-based harassment claim is the plaintiff's showing that, due to unwelcome harassment aimed primarily toward his or her age, he or she endured a hostile work environment. If the harassment was substantial or pervasive enough, the harassment would also qualify as discrimination.
To bring a claim for wrongful termination based on the employee's age, the employee must show that:
- He was over forty (40) years of age,
- He was subjected to unwelcome age harassment including harassing words or actions,
- The harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment, and
- There is a basis for holding the employer responsible for the harassment." Crawford v. Medina Gen. Hosp. 96 F3d at 836.
In addition, "stray remarks" by management or supervisors may be enough to show a bias in the decision-making wing of a company against older individuals. Mangold v. California Public Utilities Com'n. (9th Cir. 1995) 67 F.3d 1470, 1477 (discussing discrimination as opposed to harassment). For example, the comment, "older employees, unfortunately, don't take advantage of all the opportunities that are offered to them," made by a senior executive was relevant to a claim of age discrimination. Id. While statements made by management or supervisors go toward a showing of discrimination towards elderly workers, if an older employer were subjected to them such that they experienced a hostile work environment, age harassment most likely also would be found by a court.
Harassment is not limited to purely verbal or physical abuse, however. For example, an employee of sixty years of age at a department store may legitimately feel harassed if other employees frequently go out of their way to assist the employee reaching or carrying items that she is capable of managing herself.
Age harassment is normally a separate cause of action from age discrimination. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 US 268, 270.
One caveat with age discrimination claims generally is that age should not be confused with or treated completely separately from "over-qualification." An employee who was not hired due to her over-qualification may not necessarily have suffered from age discrimination, as over-qualification may sometimes be a justified reason for declining their employ. Harassment claims, however, usually do not face this problem, because harassment does not typically involve personnel decisions or treatment.Contact Us
If you have experienced harassment at your workplace based on your age, contact the leading age harassment lawyers in California at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.