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.

The Customer Is Not Always Right

Businesses succeed by satisfying their customers. In a phrase coined by either Marshall Field or Harry Gordon Selfridge: "The customer is always right." But, where a customer's wishes collide with an employee's legal rights, the employer may have to ignore the customer's wishes.

A 2010 case from the United States Court of Appeals for the Seventh Circuit illustrates the dangers of acceding to customer preferences. In Chaney v. Plainfield Healthcare Center, 612 F.3d 908 (7th Cir. 2010), a white patient said that he only wanted to receive care from white health care providers. The facility complied by issuing written instructions that no Black providers were to enter the patient's room. That was consistent with its policy of honoring patients' racial preferences. The Court of Appeals found that the policy contributed to an unlawful hostile environment. The EEOC Compliance Manual similarly states that "customer preference is not a defense to race discrimination."

The Cheney court distinguished cases that had recognized gender as a bona fide occupational qualification in the health care and prison fields, where the customers had privacy concerns. See Jennings v. New York State Office of Mental Health, 786 F. Supp. 376 (S.D.N.Y. 1992). A recent case from the Southern District of New York acknowledged the need to accommodate privacy concerns, but ruled that there were means for accommodating that interest other than a flat ban on appointing female correctional officers to a particular position. See White v. Department of Correctional Services, Case No. 08-0993 (S.D.N.Y. Sep. 30, 2011).

A 2002 California Court of Appeal case recognized another limited exception to the usual rule. In West v. Bechtel Corp., 96 Cal.App.4th 966, 117 Cal.Rptr.2d 647 (2002), the court reversed a $100,000 judgment based on age discrimination allegations. The Saudi Arabian government entity that Bechtel had a contract with vetoed the hiring of a 62-year old employee for a key position because of his age. Because there was no evidence that the decision-maker at Bechtel had a discriminatory motive, the employee had no case. Bechtel had made a neutral business decision based on the direction of the Saudi government entity.

Although there are limited circumstances where an employer' accession to customer preference may be a defense to a discrimination claim, those are exceptions to the firmly established rule to the contrary.

In addition, failure to take corrective action when informed of a customer's harassing behavior may expose the employer to hostile environment liability. In Salazar v. Diversified Paratransit, Inc.,117 Cal.App.4th 318, 11 Cal.Rptr.3d 630 (2004), the court ruled that a female driver had a viable hostile environment claim if her employer had failed to take action after she reported that a client had harassed her.

Courts Can Discriminate, Too

The First District Court of Appeal in San Francisco has ruled that a Sonoma County Superior Court Commissioner may pursue an age discrimination claim against the Court over the Superior Court's claim of discretionary immunity under Government Code section 820.2. See DeJung v. Superior Court, Case No. A116911 (Dec. 19, 2008).

DeJung (age 64) alleged that the Executive Committee of the Superior Court judges refused to appoint him to a full time position because they preferred a younger candidate. Relying on the California Supreme Court's decision in Caldwell v. Montoya, 10 Cal.4th 972 (1995), the Superior Court argued that the decision to appoint a commissioner was a discretionary one immune from liability under section 820.2. The Court of Appeal explained that Caldwell only immunized individual government officials for their discretionary decisions. The Supreme Court had expressly declined to rule whether section 820.2 would provide immunity from a direct liability claim under the Fair Employment and Housing Act against a government entity, like the one alleged by DeJung. The Court of Appeal decided that it did not.

On the merits, DeJung provided evidence that the presiding judge had said twice that the judges wanted someone younger than DeJung. The Superior Court attempted to overcome that evidence by arguing that the decision was made by a committee, of which the presiding judge was just one member. The argument was punctured by the claws of the "cat's paw" doctrine, that is, as the Court explained, "showing that a significant participant in an employment decision exhibited discriminatory animus is enough to raise an inference that the employment decision itself was discriminatory."

[The phrase cat's paw is derived from a La Fontaine fable entitled The Monkey and the Cat, in which a monkey convinces a cat to pull chestnuts out of hot coals for him, and refers to using another (the cat's paw) to accomplish one's purposes.]