California age discrimination under the Fair Employment and Housing Act prohibits employer discrimination against job seekers who are 40 years of age or older. An employer violates California law when the employer discriminates against an employee because of the employee’s age. (Gov. Code, § 12941.) Disparate treatment discrimination happens when an employee is specifically targeted or singled out because of their protected characteristic. California age discrimination law requires that the employer’s actions must be motivated by discriminatory intent. (Abed v. Western Dental Services, Inc. (2018) 23 Cal.App.5th 726, 737.)
California Law Protecting Against Age Discrimination
The California Fair Employment and Housing Act (FEHA) applies the protections of ADEA to smaller employers with at least 5 employees. The California statute prohibiting age discrimination is the Fair Employment and Housing Act (“FEHA”). (Gov. Code, § 12940, et seq.)
The federal age discrimination law under FEHA, Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e, et seq.), also protects against employment discrimination based on age.
Because FEHA and Title VII of the Federal Civil Rights Act of 1964 have the same age discrimination objectives and public policy purposes, California courts may rely on federal decisions to interpret analogous parts of the state statute. (Wade v. Ports America Management Corp. (2013) 218 Cal.App.4th 648, 652.)
California age discrimination elements
It is illegal for an employer to fire or refuse to hire someone because of that person’s age. To establish this claim, Plaintiff must prove:
- That Defendant was a covered employer;
- That Plaintiff was an employee of Defendant;
- That Defendant fired Plaintiff and that Plaintiff’s age was a substantial motivating reason for Defendant’s decision to fire her; and
- That Plaintiff was harmed and that Defendant’s conduct was a substantial factor in causing Paula’s harm.
A lawyer that defends an employer against age discrimination in California will argue that at least one element cannot be proven.
Element 1: Covered Employer
An employer includes any person or entity regularly employing five or more persons. (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 260, quoting Gov. Code, § 12926, subd. (d).)
Covered: Agents of Covered Employers
An agent is a person who represents another person or an entity in dealing with third persons. Under California law, agents of covered employers are also considered employers. (Gov. Code, § 12926, subd. (d).)
To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492.)
Covered: State, Cities, and Political or Civil Divisions
The state, cities, and any political or civil division of the state are covered employers. (Gov. Code, § 12926, subd. (d).)
Covered: Labor Organizations
A labor organization, like an employer, cannot discriminate on the basis of an individual’s religious creed.(Gov. Code, § 12940, subd. (a).)
A “labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, or terms or conditions of employment. (Gov. Code, § 12926, subd. (g).)
Covered: Individual Employees (Coworkers/Supervisors)
An employee of an entity subject to the FEHA age discrimination is personally liable for any harassment prohibited that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code §, 12940, subd. (j)(3).)
Note: This individual liability was only recently codified by the California Legislature after the California Supreme Court held in Reno v. Baird that individual employees are not liable under FEHA. Today, individual employees can be held liable.
Not Covered: Nonprofit Religious Associations and Corporations
California age discrimination law does not apply to employers that are nonprofit religious associations and corporations. (Gov. Code, § 12926, subd. (d)(1).)
Element 2: Protected Employee
The FEHA age discrimination protects employees over the age of 40. (Gov. Code, §§12926, subd. (b), 12941 subd. (a).)
Protected: Employees
An employee is someone who is both a person who works under the direction and control of the employer, and a person whom the employer has agreed to hire. (Gov. Code, § 12926, subd. (c).) However, the “FEHA does not define an employer, employee, or what constitutes employment.” (Shephard v. Loyola Marymount Univ. (2002) 102. Cal.App.4th 837, 842.)
Protected: Temporary Workers
Age discrimination in California also apply to temporary workers that are considered employees. (Bradley v. California Dept. of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612.)
Protected: Job Applicants
California age discrimination law expressly extends its anti-discrimination protections to applicants for employment positions. Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.)
Protected: Unpaid Interns
Age discrimination in California protects unpaid interns which a worker will have the right to be free from discrimination despite not being an employee. (Gov. Code, § 12940, subds. (c), (j), & (l).)
Not Protected: Volunteers
Age discrimination law in California does not protect volunteers. (Mendoza v. Town of Ross (2005) Cal.App.4th 625.)
Not Protected: Family Members
Person employed by their parents, spouse, or child are not protected under California age discrimination law. (Mendoza v. Town of Ross (2005) Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].)
Not Protected: Independent Contractors
Independent contractors are not protected under age discrimination in California because they do not work under the direct control and supervision of the employer. (Gov. Code, § 12940, subd. (j)(5).)
Element 3: Adverse Employment Action
“Adverse employment action” is a shorthand expression for the kind, nature, or degree of action against an employee that is enough to state a claim. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal.App.4th 359, 373.) Generally, the discrimination must adversely and materially affect the terms, conditions, or privileges of plaintiff’s employment. (Gov. Code, § 12940, subd. (a).)
An adverse employment action is interpreted liberally by the court under a case-by-case analysis, and it must be substantial. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1053-1043.) Additionally. an adverse employment action may consist of a “series of subtle, yet damaging, injuries,” rather than a single actionable event. (Ibid.)
Forcing Plaintiff to Undergo Discriminatory Tests Constitutes Discriminatory Denial Under FEHA
Forcing a plaintiff to undergo discriminatory tests and other selection procedures, publishing items or making non-related job inquiries that express discrimination, and/or failing to receive merit increases or accurate performance appraisals, constitute discriminatory denial of terms and conditions under the FEHA. (Code Regs. tit. 2, §§ 7287.1-9.)
Not Always Necessary to Provide Evidence of Treatment of “Similarly Situated” Employees
To prove age discrimination in California, the treatment was different or disparate, it is not always necessary to produce evidence regarding the treatment of “similarly situated” employees outside the protected class. (Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735.)
Element 4: Discriminatory Intent
To prevail under a disparate treatment theory of age discrimination in California, a plaintiff must prove that he or she suffered an adverse action because of a protected characteristic. (Mixon v. Fair Employment & Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.) Because disparate treatment is based on intentional discrimination, a plaintiff must prove the defendant employer harbored discriminatory intent. (Scotch v. Art Inst. of Calif.-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1007) (plaintiff “must prove by a preponderance of the evidence that there was a ‘causal connection’ between the employee’s protected status and the adverse employment decision.”)).
The employer is liable for age discrimination in California if the employee proves that age was a “motivating factor” in the employment decision. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 206-08.) The employee must prove that the employer considered his or her age in denying an employment benefit. (Cal. Code Regs. tit. 2, §7295.2, subd. (a).) The employee also must prove that the adverse action was specifically motivated, at least in part, by the employee’s age. (Hazen Paper Co. v. Biggins (1993) 507 U.S. 604, 608-14).
Proving Intentional Discrimination by Circumstantial or Direct Evidence
A plaintiff may prove intentional discrimination in California by using either direct or circumstantial evidence. (Mixon v. Fair Employment & Housing Comm’n (1987) 192 Cal.App.3d 1306, 1317.)
Plaintiff Has Burden of Proving Intentional Discrimination
In disparate treatment cases, the employee must prove the ultimate fact that the defendant engaged in intentional discrimination. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327.)
Three-Part Analysis for Cases Based on Circumstantial Evidence (McDonnell Douglas Test)
In most cases, a plaintiff will not have direct evidence of the employer’s discriminatory intent. Consequently, a three-part analysis for cases based on indirect or circumstantial evidence has been established:
- The complainant must establish a prima facie case of discrimination;
- The employer must offer a legitimate reason for its actions; and
- The complainant must prove that this reason was a pretext to mask an illegal motive. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52.)
Establishing a Prima Facie Case of Discrimination
To establish a prima facie case of age discrimination in California a plaintiff must show that: (1) he belongs to a protected class; (2) his job performance was satisfactory; (3) he was discharged (or suffered some other adverse employment action); and (4) others not in the protected class were retained in similar jobs and/or the job was filled by an individual of comparable qualifications not in the protected class. (Guz v. Bechtel National, Inc. (2000) 24 Cal. 4th 317.)
Very Little Evidence Required to Show a Prima Facie Case of Discrimination
The amount of evidence that must be produced to create a prima facie case of discrimination is “very little.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189.)
Establishing Prima Facie Case in a Wrongful Discharge Case
In a wrongful discharge case, a plaintiff usually establishes age discrimination in California case in one of two ways: either he was replaced by a non-minority member no more qualified than he, or he was fired when minority co-workers similarly situated were not fired. (Mixon v. Fair Employment and Housing Comm’n (1987) 192 Cal.App.3d 1306.)
After a Prima Facie Case is Established, Burden Shifts to Defendant
Once a prima facie case is established, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory business reason for the adverse action. (Nakai v. Friendship House Assn. of American Indians, Inc. (2017) 15 Cal.App.5th 32.)
Discharging Employee for Economic Reasons Is Not Discriminatory
Discharging an employee for economic reasons (i.e., as part of a reduction-in-force) may be sufficient justification as a matter of law. (Clutterham v. Coachmen Indus., Inc. (1985) 169 Cal.App.3d 1223.)
Believing Employee Engaged in Misconduct Is A Legitimate Business Reason
Terminating an employee based on a good faith belief that an employee engaged in misconduct is a legitimate business reason. (Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal.App.4th 32.)
Plaintiff Can Still Rebut to Show Discrimination
If the employer meets its burden of production, the plaintiff may still prevail by showing by a preponderance of evidence that the discriminatory reason more likely than not motivated the employer or that the employer’s proffered reason is a pretext for discrimination and is unworthy of credence. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297.)
Successful Age Discrimination Claim
An employee established that his employer’s age-neutral reason for demotion (substandard job performance) was a pretext for age discrimination violation with evidence that he was consistently recognized for his outstanding job performance, that he was replaced by a person 26 years younger than he was, and that management only started to criticize his job performance after he made it clear that he had no plans to retire. (Stephens v. Coldwell Banker Commercial Group, Inc. (1988) 199 Cal. App. 3d 1394, 1399-1402.)
Unsuccessful Age Discrimination Claim
Substantial evidence supported the jury’s finding that age was not a motivating factor in an employer’s decision not to renew a teacher’s contract notwithstanding age-based statements by one of the decision-makers. The jury was entitled to believe testimony that the employee’s contract was not renewed because, among other things, he had very low expectations for students. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal. App. 4th 189, 206-07.)
FILING AN AGE DISCRIMINATION CLAIM
Must Exhaust Administrative Remedies
Before filing a age discrimination lawsuit in California, the employee must exhaust available administrative remedies by filing a charge of age discrimination with the California Department of Fair Employment & Housing (“DFEH”). (Gov. Code, § 12960.)
Right to Sue After One Year of Filing With DFEH
An employee’s right to sue arises by operation of law when the Department of Fair Employment and Housing fails to resolve the matter within one year from the time the employee first filed an administrative complaint for discrimination. The employee’s failure to obtain a second right to sue letter does not preclude a finding that the employee exhausted all required administrative remedies. (Grant v. Comp USA, Inc. (2003) 109 Cal.App.4th 637.)
Administrative Complaint Requirements
The employee must specify each separate and distinct act of discrimination (e.g., unlawful demotion and unlawful discharge) in the administrative complaint. (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724-30.) This includes any retaliation for complaining about discrimination. Okoli v. Lockheed Technical Operations Co. (1995) 6 Cal. App. 4th 1607, 1612-17.)
Exception
Employees may not have to exhaust available administrative remedies before filing common law age discrimination claims. (See Stevenson v. Superior Court (1997) 16 Cal. 4th 880.) However, employers who are not covered by the FEHA might not be liable under a common law theory. (Jennings v. Marralle (1994) 8 Cal. 4th. [employee could not maintain common law claim for age discrimination against employer who was not covered by the FEHA].)
Statute of Limitations
The three years statute of limitations for filing an administrative charge of discrimination with the DFEH begins to run from the time the adverse action actually takes place, not the earlier date of notification of the adverse action. (Romano v. Rockwell Int’l (1996) 14 Cal. 4th 479.)
REMEDIES
Compensatory Damages
The plaintiff may recover damages if he or she demonstrates that the Defendant engaged in discriminatory practice or discriminatory practices with malice or with reckless indifference. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519.)
Punitive Damages
Where an action is pleaded under the Fair Employment and Housing Act for discrimination, the same opportunity to plead and recover punitive damages exists. (Monge v. Superior Court (1986) 176 Cal.App.3d 503.)
Injunctive Relief
Injunctive relief is an appropriate remedy where a business engages in unlawful discrimination since an employer that so discriminates may have an unfair advantage over one that complies with the FEHA. Injunctive relief can include reinstatement of the wrongfully terminated employee. (Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779.)
Prejudgment Interest
Prejudgment interest accompanies a backpay award in order to make the employee whole. (Currie v. Workers’ Comp. Appeals Bd. (2001) 24 Cal.4th 1109.)
Attorneys’ Fees and Costs
The court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees. (Gov. Code, § 12965, subd. (b).)
Lost Compensation
Back Pay
Back pay restores a plaintiff in an employment discrimination case to the position he or she would have occupied but for the discrimination. (Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139.)
Front Pay
Front pay as the term is used in employment litigation, is a measure of damages for loss of future income, as opposed to backpay, which is lost-wages damages through the time of trial. If the judge orders reinstatement of a fired employee, front pay might be awarded to make up a wage differential if there were no vacancy into which the employee could immediately be reinstated or promoted. (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359.)
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