Age Termination

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. Cal. Gov. Code §12926(b). 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 wrongful termination 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 terminated
  • and that other and younger employees (i.e., who were thirty years of age) were not terminated by the employer. (Ex: thirty year old workers retained similar jobs and 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.

One caveat with age discrimination claims generally is that age should not be 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.

FEHA proscribes two types of wrongful termination: (1) wrongful termination arising from an employer's intentionally discriminatory act against an employee because of his or her age (referred to as disparate treatment), and (2) wrongful termination 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). Knight v. Hayward Unified School Dist., (2005) 132 Cal.App.4th 121, 128-29 (discussing disability discrimination).

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. Thus, harassment that led up to the discrimination and/or wrongful termination might open the possibility for the plaintiff to bring both harassment and discrimination claims.

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If you have been wrongfully terminated from your workplace based on your age, contact the best age-related wrongful termination attorneys in Los Angeles at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.