Age Termination

Age discrimination is when you are treated differently because of your age in situations that are covered by certain California and federal statutes.

The Fair Employment and Housing Act (FEHA), California Government Code sections 12900 – 12996

FEHA prohibits age discrimination in employment settings in California. Under FEHA, it is unlawful for an employer with five or more employees 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. California Government Code section 12940(a). Note: religious corporations or associations not organized for private profit are generally exempt from the antidiscrimination provisions of FEHA. California Government Code section 12926(d). However, hospitals and health care facilities open to the public are subject to FEHA even if they are owned by or affiliated with religious entities. California Government Code section 12926.2(c).

The antidiscrimination provisions of FEHA apply to any employee 40 years of age or older working for a qualified employer (generally meaning an employer with five or more employees). California Government Code section 12926(b). Because it is unlawful to fire someone for having reached an age of 40 years or over, retirement or pension plans that require retirement at a certain age are typically unlawful as well.

Proving an Age Termination Claim

In order to successfully bring a claim for wrongful termination under FEHA based on an employee's age, the plaintiff needs to prove that he or she:

• Was employed by an employer with five or more employees,
• had reached forty years of age or older at the time of the alleged discrimination,
• that the employee's job performance was satisfactory,
• that the employee was terminated,
• that other and younger employees (i.e., who were thirty years of age) were not terminated by the employer. (Ex: thirty-year-old workers 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), or that the plaintiff’s age was otherwise a substantial motivating reason for the employer’s decision to terminate the employee, and
• that the employee was harmed monetarily or otherwise by the termination.

It is not always necessary to show that a younger worker replaced the older plaintiff. Merely showing that younger individuals retained similar jobs, while the older plaintiff lost his or her job, may be enough. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 367. The downsizing of an employer’s workforce also is no excuse for discriminating specifically against older employees. It is a question of motive, such as whether the downsizing was a pretext for the employer to get rid of older employees in favor of younger employees.

One caveat with age discrimination claims generally is that age should not be 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 to employ the individual. Additionally, age discrimination is lawful if belonging to a certain age group is essential to the job. For example, a film company may lawfully favor younger women over older women to fill a role of a woman who has just graduated from high school. Employers may set mandatory retirement ages for professions with demanding physical requirements, such as firefighters. However, with certain exceptions, “Every employer in this state shall permit any employee who indicates in writing a desire in a reasonable time and can demonstrate the ability to do so, to continue the employee's employment beyond any retirement date contained in any private pension or retirement plan.” California Government Code section 12942.

Disparate Treatment v. Disparate Impact Wrongful Termination:

• Wrongful termination arising from an employer's intentionally discriminatory act against an employee because of his or her age (referred to as disparate treatment). An example of this is when an employer tells you that he is firing you because you are “too old.” While overt discrimination such as this does occur, most age discrimination cases are more circumstantial in nature and require a careful examination of the facts surrounding the termination.
• Wrongful termination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees over a certain age (referred to as disparate impact). Knight v. Hayward Unified School District (2005) 132 Cal.App.4th 121, 128-29 (discussing disability discrimination). For example, “the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group.” California Government Code section 12941.

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 District v. Breeden (2001) 532 U.S. 268, 270. Thus, harassment that leads to discrimination and wrongful termination might open the possibility for the plaintiff to bring both harassment and discrimination claims.

An Example of Age Termination

The situation described below is an example of constructive termination. Constructive termination occurs when an employer, through its officers, directors, managers, or supervisors, “intentionally created or knowingly permitted working conditions to exist that were so intolerable that a reasonable person in [the plaintiff’s] position would have had no reasonable alternative except to resign.” California Civil Jury Instructions (CACI) No. 2510.

Real was employed, from age 18 continuing to when she was age 54, in various capacities by related companies that were ultimately acquired by Danaher Corporation. Her work involved dental products.

Danaher Corporation acquired the companies that Real worked for when Real was about age 46. Beginning at this time, Real and other seasoned employees heard ageist comments from management that they were too old, too slow, outdated, behind the times, and resistant to change, stereotyping these individuals because of their age.

Several years later, Estavillo became Rael's supervisor. Estavillo told Real that a more senior member of management wanted a coworker of Real, who was age 53 at the time, gone. The coworker, feeling harassed, then resigned. The coworker was replaced by an employee who was 20 years younger.

Another coworker, who was age 42 at the time, testified that Estavillo made condescending comments about older employees, and repeatedly stated, "We need younger workers." Estavillo treated the coworker in a degrading and hostile manner. This coworker then resigned as well.

Before Estavillo become her supervisor, Rael received only positive work performance reviews. However, Rael believed Estavillo was trying to force her to leave the company by increasing her workload and making her look bad. He refused her necessary training and support and repeatedly referred to her as "old culture," "outdated," and that she was resistant to change.

After Real reported Estavillo’s conduct to human resources, Estavillo became more aggressive, yelling at her and repeating that she was outdated and old culture. Real then received a written warning for alleged unprofessional behavior. Real believed the warning was in retaliation for having complained about Estavillo to human resources. Later, Rael reported a missed shipment from her largest client. As a result, she was having difficulty reaching her on-time delivery rate, which could lead to her termination. Estavillo refused to lend Real the support she needed to meet her goal. At this point, Rael felt she had no choice but to resign before she was fired. She gave four-week notice that she was resigning her employment because of undue stress. The following day, a human resources manager made Real’s resignation effective immediately. Real was replaced by an employee in his thirties.

Real later filed a lawsuit against her employers, asserting 19 causes of action, including various discrimination, harassment, retaliation, and wrongful termination claims. Ultimately at trial, Real only prevailed on her age-related claims. A jury found in Real’s favor, though on appeal the matter was remanded to the trial court for a new trial.

Rael v. Sybron Dental Specialties.

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If you have been wrongfully terminated from your workplace based on your age, or if you believe that your rights have otherwise been violated by your employer or ex-employer, call the experienced employment law attorneys at Kokozian Law Firm, APC or Contact Us via our online form.

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