May 6, 2020
There are numerous laws prohibiting discrimination in the workplace. The California Fair Employment and Housing Act (“FEHA”) [Gov. Code § 12900, et seq.] prohibits discrimination and harassment against an employee based on age (among other things). As a matter of public policy, the FEHA recognizes the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination, harassment, and retaliation. [Gov. Code § 12920.] The California state legislature has directed that the FEHA be construed liberally so as to accomplish its purposes. [Gov. Code § 12993.] Moreover, the California Supreme Court has specifically held that one’s right to be free from discrimination and harassment in the workplace is “fundamental.” [Brown v. Superior Court (1984) 37 Cal.3d 477, 485.]
It is of course illegal to discriminate against or harass an employee based on his or her age (assuming the person is 40 years old or older). [Gov. Code §§ 12926(b) and 12940(a), (j).] With regard to age discrimination, the FEHA provides:
. . . the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination . . . . The Legislature further reaffirms and declares its intent that the courts interpret the state’s statutes prohibiting age discrimination in employment broadly and vigorously, in a manner comparable to prohibitions against sex and race discrimination, and with the goal of not only protecting older workers as individuals, but also of protecting older workers as a group . . . .
[Gov. Code § 12941.]A person’s age cannot even be a motivating factor (or motivating reason) for an adverse employment action. [Watson v. Dept. of Rehabilitation (1989) 212 Cal.App.3d 1271, 1289-90; DFEH v. BIW Connector Systems, Inc. (1997) FEHC Dec. No. 97-11, at pp. 18-19 (1997 CA FEHC LEXIS 12, Case No. E94-95); DFEH v. Church’s Fried Chicken, Inc. (1990) FEHC Dec. No. 90-11, at p. 19 (1990 CA FEHC LEXIS 6, Case No. FEP-82-83).]
Evidence that an age-protected employee was replaced by a “substantially younger” person, or that a younger person was given “more favorable” treatment, may permit an inference of intentional age discrimination. [See Guz v. Bechtel Nat’l, Inc. (2000) 78 Cal.App.4th 317, 367; Begnal v. Canfield & Assocs. (2000) 78 Cal.App.4th 66, 74.]
It is also illegal for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring, and this “failure to prevent” is separately actionable under the FEHA. [Gov. Code § 12940(k); Trujillo v. North Co. Transit Dist. (1998) 63 Cal.App.4th 280, 286.]
Damages available to an employee for age discrimination in violation of the FEHA include economic damages (including both back pay, front pay, and medical expenses), general damages (for pain, suffering, and emotional distress), punitive damages, attorney fees, and expert witness fees. [Gov. Code §§ 12940 and 12965(b).] Unlike with federal law, there is no limit to how large an award can be under the FEHA.
The FEHA provides for detailed procedures and remedies to deter and redress unlawful employment practices, such as age discrimination and harassment.
Previously, the FEHA had a statute of limitations of only one year from the time the discrimination occurred to file a complaint. In October 2019, Governor Newsom approved Assembly Bill No. 9 (“AB9″), which extended the statute of limitations to three years from the date of employment discrimination to file a complaint. Gov. Code § 12960(e).]
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This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.