Age Discrimination—Disparate Treatment in California Workplaces
Introduction
California’s Fair Employment and Housing Act (FEHA) prohibits employers from discriminating against employees or job applicants who are age 40 or older. Discrimination based on age in hiring, firing, promotion, or other job actions is unlawful. Cal. Gov’t Code §§ 12940(a), 12926(b).
Legal Standard: Essential Elements
To prove age discrimination under FEHA, a plaintiff must establish:
The defendant was a covered employer or entity.
The plaintiff was an employee or applicant.
The employer took an adverse employment action (such as discharge, refusal to hire, demotion, or constructive discharge).
The plaintiff was age 40 or older at the time of the adverse action.
The plaintiff’s age was a substantial motivating reason for the employer’s decision or conduct.
The plaintiff suffered harm.
The employer’s discriminatory conduct was a substantial factor in causing that harm.
Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 321 (2010); Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (2013).
Burden Shifting and Causation
Under the McDonnell Douglas test, the burden initially falls on the employee to provide evidence suggesting age discrimination. The employer then must articulate a lawful reason for its action. At trial, the jury decides whether age discrimination was a substantial motivating factor behind the adverse decision. Muzquiz v. City of Emeryville, 79 Cal.App.4th 1106, 1118–19 (2000).
Key causation questions:
Was the employer’s discriminatory animus based on age?
Did the adverse employment action cause actual harm?
Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686, 713 (2008).
Satisfactory Job Performance
Although the plaintiff must offer evidence of satisfactory job performance at the time of the adverse action, this is typically an element of the prima facie case, not a requirement for the jury’s ultimate decision. Sandell, 188 Cal.App.4th at 321–22 (2010).
Practical Guidance for California Employers
Employers should:
Base employment decisions strictly on objective criteria (skills, performance, business needs).
Clearly document reasons for adverse actions and avoid references to age in decision-making.
Train managers about age discrimination risks.
Review layoff, firing, and hiring processes for bias or disparate impact on older workers.
Bottom Line
FEHA protects workers age 40 and older against disparate treatment on the basis of age. Employers must be able to show legitimate, non-discriminatory grounds for decisions, and employees must prove age was a substantial motivating reason for any negative employment action. Good documentation, training, and objective standards help minimize legal risk.
Citations
Cal. Gov’t Code §§ 12940(a), 12926(b), 12941; Sandell v. Taylor-Listug, Inc., 188 Cal.App.4th 297, 321–22 (2010); Harris v. City of Santa Monica, 56 Cal.4th 203, 232 (2013); Mamou v. Trendwest Resorts, Inc., 165 Cal.App.4th 686, 713 (2008); Muzquiz v. City of Emeryville, 79 Cal.App.4th 1106, 1118–19 (2000).
