Age discrimination happens when the job applicant or an employee receives less favorable treatment because of his age. California two main sets of law: the federal Age Discrimination in Employment Act (ADEA) and California’s Fair Employment and Housing Act (FEHA) protect the employees against age discrimination
Examples of Age-Based Discrimination
Generally, it is illegal to discriminate against employees over the age of 40 based on their age. This includes treating employees differently due to age, with respect to their compensation, work conditions, job assignments, and terms of the employment.
Some common examples of age-based discrimination include:
- Refusing to hire older employees, despite being equal or more qualified than others
- Refusing to promote the employee because of his age
- Firing the employee, after he reaches a certain age
- Age-related harassment at the workplace
California’s Fair Employment and Housing Act prohibits retirement plans with a mandatory age of retirement, but there are some exceptions, which allow for mandatory retirement.
- Bona Fide Executives and High Policymakers. Private employers are allowed to impose mandatory retirement for bona fide executives or high policymaking employees. But, these employees must be at least 65 years old and be entitled to yearly retirement benefits of at least $27,000
- Physicians at the age of 70 or older, working in professional medical corporation which provides for compulsory retirement.
- Tenured faculty members at certain qualified institutions of higher learning can be forced to retire, however the retirement policy should permit reemployment on a year-to-year basis.
Filling a Claim
In case the employee decides to sue his employer, he must first file a written complaint with an administrative agency, because he cannot go straight to court with a lawsuit. In case the discriminated employee is bringing claims only under state law, he must file the complaint with the DFEH. In case the employee is bringing claims under federal law, he can file the complaint with either the DFEH or the U.S. Equal Employment Opportunity Commission (EEOC).
In case, after filling a complaint with the appropriate administrative agency, the claim is not resolved, the employee is issued a document called a right-to-sue letter. After that, the employee may pursue his case by bringing a lawsuit in court.
Elements the Plaintiff Must Prove in the Court
According to CACI 2570, in case the plaintiff claims that the defendant wrongfully discriminated against him because of his age, he must prove the following elements to establish this claim:
- Defendant was an employer or other covered entity
- Plaintiff was an employee of the defendant or applied to the defendant for a job
- Defendant discharged or refused to hire the plaintiff, subjected the plaintiff to an adverse employment action or the plaintiff was constructively discharged
- Plaintiff was at the age of 40 or older at the time of the discharge
- Plaintiff’s age was a substantial motivating reason for defendant’s decision to discharge or refuse to hire him
- Plaintiff was harmed
- Defendant’s conduct was a substantial factor in causing harm to the plaintiff
Statute of Limitations
- The employee must file a complaint against the employer with the DFEH no later than one year starting from the date of the discriminatory act.
- The employee has one year to file a lawsuit in civil court after being issued a right-to-sue letter.
- The employee has 300 days after the discriminatory act to bring claim under federal law.
- In case EEOC or DFEH issues a right-to-sue letter, the employee has 90 days to bring a lawsuit against the employer in court based on federal claims.