Age Harassment

The California Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996, prohibits harassment based on an individual's age. California Government Code section 12940(j). Under the FEHA, age is defined as “the chronological age of any individual who has reached a 40th birthday.” California Government Code section 12926(b). Therefore, the FEHA prohibits harassment based on an individual's age so long as the individual is at least 40 years of age. In addition, age-based harassment is also forbidden by the federal Age Discrimination in Employment Act of 1967 (ADEA). 29 United States Code section 621 et seq.; 29 Code of Federal Regulations part 1625. The ADEA is enforced by the Equal Employment Opportunity Commission (EEOC).

The FEHA age provision applies to any employee of 40 years of age or older working for a qualified employer. While the FEHA prohibits employers with five or more employees (California Government Code section 12926(d)) from engaging in age discrimination, all employers regardless of size are prohibited from engaging in age harassment. California Government Code section 12940(j)(4). The key criterion for an age-based harassment claim is the employee's showing that, due to unwelcome harassment aimed primarily toward his or her age, he or she endured a hostile work environment. If the harassment were substantial or pervasive enough, the harassment would also qualify as age discrimination.

Under federal law, to bring a claim for wrongful termination based on the employee's age, the employee must show that:

• She was forty (40) years of age or older,
• She was subjected to unwelcome age harassment including harassing words or actions,
• The harassment unreasonably interfered with her work performance by creating an objectively intimidating, hostile, or offensive work environment, and
• There is a basis for holding the employer responsible for the harassment. Crawford v. Medina Gen. Hosp. (6th Cir. 1996) 96 F.3d 830, 834.

In contrast, California law has dispensed with the requirement that the employee must show that the harassment unreasonably interfered with the harassed employee’s work performance. Harassment is actionable so long as it makes it more difficult for the harassed employee to do his or her job. “[I]n a workplace harassment suit ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.’” California Government Code section 12923(a) citing to Justice Ruth Bader Ginsburg’s concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17, 26.

In addition, "stray remarks" by management or supervisors may be enough to show a bias in the decision-making wing of a company against older individuals. Mangold v. California Public Utilities Commission (9th Cir. 1995) 67 F.3d 1470, 1476-1477 (discussing discrimination as opposed to harassment). For example, the comments, "We're going into a bright new future in which we have an excellent staff of young professional people" and "older employees, unfortunately, don't take advantage of all the opportunities that are offered to them," made by a senior executive was relevant to a claim of age discrimination. Id. While statements made by management or supervisors go toward a showing of discrimination towards older workers, if an older employee were repeatedly subjected to such comments so that he or she experienced a hostile work environment, age harassment most likely also would be found by a court.

Harassment is not limited to purely verbal or physical abuse, however. For example, an employee of sixty years of age at a department store may legitimately feel harassed if other employees frequently go out of their way to assist the employee reaching or carrying items that she is capable of managing herself.

Age harassment is normally a separate cause of action from age discrimination. However, 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 (2001) 532 US 268, 270.

Example: In an unpublished California case, an older employee, Fernandez, worked in a hospital cleaning and maintaining patient rooms, a waiting room, as well as the Intensive Care Unit, the Respiratory Therapy Area, and several utility rooms and hallways. Fernandez had been employed by the hospital for over 20 years. About a year before her employment was terminated, Fernandez was put on a work improvement plan due to complaints that she had inadequately cleaned some of the areas she was responsible to maintain. Thereafter, Fernandez was allegedly subjected to repeated harassment by her supervisor because of her age. Her supervisor told her that she was too old and that the supervisor preferred younger people working in his department. Her supervisor also told her that she was a "f**king old lady"; that she was "old," and that she was a "f**king broad who is much too old [and] should leave [her] job to some other person." Her supervisor also told her coworkers that Fernandez was "[was] too damn old to work here [and they] should just get [her] out of here." Fernandez testified that she was subjected to these kinds of comments at least twice a week for at least the last six months of her employment. Fernandez also testified that these comments were unwelcome and caused her anxiety and stress. The hospital terminated her employment. At the time, Fernandez was 51 years old. She then filed a lawsuit alleging several causes of action, including age harassment. The Court of Appeals of California, Second Appellate District, Division Two later ruled that Fernandez had stated a claim for age harassment and created a triable issue of fact as to whether she was the victim of age harassment. The harassment alleged was sufficiently severe and pervasive to alter the conditions of her employment and create an abusive environment given that Fernandez had testified that she found it hard to deal with her supervisors because of these comments. Fernandez v. West Hills Hospital & Medical Center (2008).

Example: Though pleaded as an age discrimination claim, the eight dockworkers (who were approximately 50 years of age or older and some of whom had worked at the company for over 20 years) in Civil Action No. 3-10-cv-1954-K filed in the United States District Court for the Northern District of Texas, Dallas Division, were arguably subjected to age harassment by their employer. The workers were allegedly called names, including "grandpa," "old farts" and "old bastards" by their supervisor. The employees were then allegedly terminated under a reduction-in-force ruse after the company changed its attendance and disciplinary policy so that the older men were suddenly placed on corrective action and qualified for termination under the new policy. In fact, the older employees were allegedly replaced with young hires. The case ultimately resolved by a consent decree, Central Freight Lines Inc. agreeing to pay the affected employees $400,000 and train management and supervisors equal employment policies and procedures.

One caveat with age discrimination claims generally is that age should not be confused with or treated completely separately from "over-qualification." An employee who was not hired due to her over-qualification may not necessarily have suffered from age discrimination, as over-qualification may sometimes be a justified reason for declining their employ.

If you have experienced harassment at your workplace based of your age, contact the lawyers at Kokozian Law Firm, APC. Ask about our free initial consultation.