Age Discrimination

Age discrimination is like other forms of discrimination, except when it is not. The federal Age Discrimination in Employment Act (ADEA) prohibits discrimination and harassment based on age against employers who are over 40. The California Fair Employment and Housing Act (FEHA) includes age over 40 among its protected characteristics. Until 1996, the ADEA allowed discrimination against those over 70. Since then the law has protected all employees over 40. Because the protections do not apply to those under 40, employers may prefer older employees without violating the statutes.

The EEOC's charge statistics show a rise in age discrimination complaints from 16,548 in 2006 to 23,465 in 2011. As a result, the agency has focused some of its enforcement efforts on age discrimination cases. For example,  in October 2011, it filed suit against the Texas Roadhouse restaurant chain, alleging that it discriminated against older workers.

Like those who sue based on other protected characteristics, age discrimination plaintiffs may prove their cases through the burden shifting approach established by the United States Supreme Court in the McDonnell Douglas case. See Reid v. Google, Inc., 50 Cal.4th 512, 235 P.3d 988 (2010); Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201 (9th Cir. 2008). Under that approach, the plaintiff must first establish a prima facie case by showing that he or she was (1) at least forty years old, (2) performing the job satisfactorily, (3) discharged, and (4) either replaced by a substantially younger employee with equal or inferior qualifications, or discharged under circumstances otherwise giving rise to an inference of age discrimination. However, the fact that the plaintiff was replaced by someone who was also over 40 does not defeat an age discrimination claim. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996).

Age discrimination law differs from that applicable to other protected characteristics in the following ways:

• If it costs more to provide the same benefit to employees over 40, the employer may pay the same amount for benefits for both those over 40 and those under, even if that results in workers over 40 receiving fewer benefits.
• Because of the 11th Amendment, state employees may not sue for damages in age discrimination cases, but local government employees may. Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
• Although the ADEA allows state and local governments to use age as a basis for hiring and retiring law enforcement officers and firefighters, the FEHA does not.Other California statutes impose a mandatory retirement age of 60 on firefighters and law enforcement officers, but allow those in Los Angeles County to continue employment past 60 with medical certification of fitness for duty.
• Employers may establish compulsory retirement for a bona fide executive or high policymaker who has reached age 65 and is entitled to a pension benefit of at least $44,000.
• Releases of age discrimination claims are not effective unless the employee is advised to consult an attorney, is given 21 days to consider the terms of the release, and seven days to reconsider after signing the release.