Age Discrimination

AGE DISCRIMINATION

California law prohibits discrimination on the basis of age. Government Code §§12940 and 12941. Like the federal Age Discrimination in Employment Act, the FEHA bars discrimination against individuals over the age of 40. Government Code §12926(b). But the FEHA provides more remedies than does federal law. For example, California law allows recovery for emotional distress and punitive damages, with no statutory limit on damage awards.

It is generally unlawful under the FEHA to do any of the following on the basis of a person’s age:

  • refuse to hire or employ the person;
  • refuse to select the person for a training program leading to employment;
  • bar or discharge the person from employment or from a training program leading to employment;
  • discriminate against the person in compensation or in the terms, conditions or privileges of employment.

California also prohibits the use of salary as a basis for differentiating between employees when terminating employment. Government Code §12941. An employee may succeed on a claim of age discrimination by proving that the employer used salary as a basis for termination and the employer’s use of salary adversely affected older employees. While the statute limits itself to addressing salary, other differences between younger and older workers, such as promotions and benefits, may be challenged as age discrimination under the FEHA as well.

Notwithstanding the above, the FEHA does not make it unlawful for employers to promote within the existing staff, hire or promote on the basis of experience and training, rehire on the basis of seniority and prior service, or hire under specified established recruiting programs. You may also refuse to employ a person based on age, when required to do so by other laws (e.g., child labor laws). Government Code §12940(a)(5).

FEHA also prohibits mandatory retirement ages, even in bona fide private pension or retirement plans. Employees who wish to work beyond any retirement date and express this wish to the employer must be allowed to do so beyond the date provided for in their respective pension or retirement plans. Government Code §12942.