Under the California Fair Employment and Housing Act (“FEHA”), it is unlawful for an employer to refuse to hire, to discharge or to terminate, to refuse to select or to bar or discharge an employee from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment because of the employee’s age. Cal. Gov. Code § 12940(a). The law against age discrimination applies to any employee of 40 years of age or older working for a qualified employer. Cal. Gov. Code §12926(b). Because it is unlawful to fire someone for having reached an age over 40 years, retirement or pension plans that require retirement at a certain age are typically unlawful as well.
Employee Needs To Prove
- The employee has reached forty years of age or older.
- The employee's job performance was satisfactory, or that the employee was qualified for the job which they were not hired for.
- That the employee was terminated.
- That other and younger employees (i.e., who were thirty years of age) were not terminated by the employer. (Example: thirty year old employees retained similar jobs and the employee who is bringing the claim is sixty-five years of age and lost his or her position to a younger individual).
It is important to note that an employee does not have to show that a younger employee replaced the elder plaintiff, but rather only that younger employees retained similar jobs, while the elder plaintiff lost his or hers. Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 367 (2000). An employer’s decision to downsize their workforce does not justify discriminating against elder employees.
Finally, although age harassment is a separate claim than age discrimination, harassment is actionable as “discrimination” if it is “so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment.” Clark County School Dist. v. Breeden, 532 US 268, 270 (2001).
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If you believe your employer has treated you adversely, including wrongfully terminated you, discriminated against you, retaliated against you, or harassed you, you should Contact Sani Law today to schedule a free initial consultation.