How a discrimination lawyer defends against a age discrimination lawsuit.

Our attorneys who defends employers against an age discrimination lawsuit will assert affirmative defenses, including that the employee was not qualified for occupation, business necessity, or seniority system.

California laws forbids age discrimination against workers who are age 40 or older. Age discrimination laws do not protect employees under the age of 40. It is not illegal for an employer to favor an older worker over a younger one, even if both workers are age 40 or older. There are several defenses to age discrimination in California. An employer can defend an age discrimination lawsuit by by showing that the employer has a legitimate, non-discriminatory reason for firing an employee unrelated to age.

Bona fide Occupational Qualification

An employer may assert an age discrimination defense that a bona fide occupational qualification (BFOQ) defense to a disparate treatment claim where the employer has a practice that on its face excludes an entire group of individuals because of their protected status. (Gov. Code, § 12940, subd. (a)(1).) This defense is a narrow exception to the general prohibition on discrimination. (Bohemian Club v. Fair Employment & Housing Com. (1984) 187 Cal.App.3d 1, 19.)

Example

Dan defense to age discrimination is that his decision to fire Paula was lawful because he was entitled to consider her age as a job requirement. To succeed in his defense to age discrimination in California, Dan would need to prove:

That the job requirement was reasonably necessary for the operation of Dan’s business;
That Dan had a reasonable basis for believing that substantially all members of Paula’s age group are unable to safely and efficiently perform that job;
That it was impossible or highly impractical to consider whether each employee was able to safely and efficiently perform the job; and
That it was impossible or highly impractical for Dan to rearrange job responsibilities to avoid using age as a job requirement.

Business Necessity

An employer may be able to defend a claim of age discrimination on the grounds that the challenged employment practice utilized significantly correlates with the fundamental requirements of job performance and there is no reasonable alternative available. (42 U.S.C. §§2000, subds. (e) – 2(k)(1)(a)(i).)

After-Acquired Evidence

This equitable defense to age discrimination applies where an employer learns, after a termination, that the employee committed additional termination-worthy wrongdoing, such as résumé fraud or on-the-job misconduct. (Salas v. Sierra Chem. Co. (2014) 59 Cal.4th 407, 428.)

Reasonable Factor Other Than Age

An employer may defend against age discrimination on the basis that the employment decision based upon a reasonable factor other than age (such as the employee’s performance or qualification for the position). (29 U.S.C. § 623, subd. (f)(1).)

Seniority System/Early Retirement Plan

A defense to age discrimination, an employer may take age into consideration in order to comply with a bona fide seniority system, employee benefit plan or early retirement plan. (Gov. Code, §12941, subd. (a).)

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