Age discrimination occurs when an employee or job applicant over the age of 40 receives less favorable treatment because of their age. In many cases, employers in California are prohibited by law from engaging in age discrimination.1
Age-based discrimination can take many forms. Common examples include:
- Refusing to hire older workers, despite being equally or more qualified than other candidates.
- Refusing to promote existing employees because of their age.
- Firing employees once they reach a certain age.
- Frequent and severe age-related harassment in the workplace.
This article explores these concepts further, and explains age discrimination under California state and federal laws.
- 1 Legal Background
- 2 The Rule Against Age Discrimination
- 3 Which Employers Can Be Held Responsible
- 4 Which Workers Receive Protections
- 5 Which Actions Are Prohibited
- 6 Exceptions to Age Discrimination Rules
- 7 Enforcing a Worker’s Rights: Filing a Claim
In California, employees are protected against age discrimination by two main sets of laws:
- The federal Age Discrimination in Employment Act (often abbreviated “ADEA”),2 and
- California’s Fair Employment and Housing Act (often abbreviated “FEHA”).3
Both sets of laws apply to California employers, although they sometimes differ in the scope of protections they provide to employees. The ADEA, for example, only covers employers who have at least 20 employees.4 FEHA, on the other hand, applies to employers with a minimum of 5 employees.5
Courts often use the ADEA to interpret FEHA, because the legislative intent behind the two statutes is largely the same.6 But, when the two sets of laws differ, employers will usually be bound by the law that provides the highest standard of protection for the employee.7
In general, FEHA is more protective of employee rights than the ADEA and courts are required to interpret it broadly and vigorously to protect older workers.8 As such, it is often advisable for employees to pursue relief under FEHA instead of the ADEA.
This article will focus on the rules applicable under FEHA because FEHA provides greater protections to most California employees than does the ADEA. So, unless federal law is specifically mentioned, the law being discussed is FEHA.
The Rule Against Age Discrimination
As mentioned above, age discrimination occurs when an employee or job applicant receives less favorable treatment because of their age. But not all types of age discrimination are prohibited.
To prove age discrimination one must first show that:
- The employer was an entity covered by applicable age discrimination laws;
- The employee or job applicant was 40 years old or older;9
- The employee or job applicant was adversely affected by an employment action; and
- The employer took that action because of the employee’s age.10
The next few sections will take a closer look at each of these elements.
Which Employers Can Be Held Responsible
California’s anti-discrimination laws apply to several categories of employers.11 Those include:
- People or businesses that regularly employ five or more persons,
- People or businesses that act as an agent of a covered employer, and
- State or local governmental entities.12
There are important exceptions to each of these categories. For example, California’s ban on age-based harassment applies to employers of any size—even those that employ fewer than five people.13
Several other caveats are explained below.
Employers with Five or More Employees
Under California law, the definition of employer includes individuals, corporations, partnerships, trusts, or other types of businesses.14
But certain small businesses are exempt from some of California’s anti-discrimination laws. Specifically, California’s anti-discrimination protections do not apply to businesses that regularly employ fewer than five people.15
California regulations provide a specific way of determining whether an employer regularly employs five or more people. The employer must have employed five or more individuals for each working day for a 20-week period some time in the last two calendar years.16
For the purpose of calculating those five or more people, the employees do not need to be located at the same worksite—or even inside of California.17 They just need to be “employees” of the employer, within the meaning of this calculation.18
Additionally, the employees included in the calculation do not actually have to work during the 20-week period. They can, for example, be on leave during portions of the calculation. They can also work only part-time for the employer.19
Certain religious nonprofit associations and corporations are not considered “employers” for these purposes. Those religious employers are thus not subject to many of California’s anti-discrimination laws.20
But, if the religious organization has a subdivision that is for-profit (meaning, it is subject to state or federal income taxes), that subdivision would not be exempt from California’s anti-discrimination laws.21
Likewise, religious nonprofits that provide certain educational or health care services can sometimes be held liable as “employers” under California law.22
This exception does not apply to non-religious entities, even if they are nonprofit. So, most nonprofit corporations and nonprofit associations are considered “employers” under California law.23
Agents of Covered Employers
California law includes agents within its definition of “employer” for the purposes of its anti-discrminiaton laws.24 As such, agents of an employer can be held responsible for their acts of age discrimination or retaliation.25
To determine whether someone is an agent of an employer, courts look at the amount of control the employer exercises over them.28 If the employer controls the way a person or business accomplishes its tasks, a court might find them to be an agent of the employer.29
Of note, a franchisor is usually not considered an employer or an agent under California law. But a franchisor can be held liable for unlawful activities if they exercise control over the day-to-day operations of the franchised location.30
Supervisors Usually Not Liable
Many supervisors and coworkers are technically “agents” of an employer. But, in general, employees cannot file a lawsuit directly against their supervisors or coworkers for discrimination or retaliation.31
Importantly though, California law still protects older employees who have been victimized by coworkers and supervisors. Employers can often be held liable for the actions of their employees.32
So, even though the employee cannot sue the supervisors personally for their discriminatory and retaliatory conduct, they can often still sue their employer.
Also, in the context of age-related harassment, employees can file a lawsuit directly against their supervisors, coworkers, and often their employer.33
State and Local Governments
The State of California is an “employer” for the purposes of California’s anti-discrimination laws. This means that people who work for the state can sue for any unlawful age-based discrimination or retaliation they suffer.34
Along these same lines, the word “employer” includes any subdivisions of the State of California, county governments, city governments, local agencies, and special districts.35
Which Workers Receive Protections
The California Fair Employment and Housing Act (“FEHA”) states that it is unlawful to discriminate against “any person” over the age of 40 because of their age.36 In reality though, the actions prohibited by FEHA are limited to the employment context.37 The result is that only certain groups of workers can benefit from California’s legal protections.
For the most part, a person must be an employee to be protected against age discrimination under California law.38 An employee is someone who is both:
- A person who works under the direction and control of the employer, and
- A person whom the employer has agreed to hire.39
The employer’s agreement to hire the employee does not necessarily need to be made in writing (although that often helps). It can be made orally, or even just implied by the actions of the employer and worker.40
If the employer has not agreed to hire the person, they might still be considered an “employee” if they are working under an appointment or as an apprentice.41
California law expressly extends its anti-discrimination protections to applicants for employment positions.42 Specifically, California makes it unlawful for an employer to refuse to hire a person or refuse to select the person for training that might lead to employment based on their age.43
An applicant is someone who files a written application with an employer. If the employer does not provide a written application form, then a person is an applicant if they express a specific desire to the employer to be considered for employment.44
In some cases, a person can be considered an “applicant” even if they haven’t actually applied for a job. If they were deterred from applying for the position because of the employer’s discriminatory practices, they may still have rights under California law.45
Importantly, California’s protections do not extend to under-qualified applicants. An employer has the right to reject an applicant if they are less qualified for a position than the person ultimately selected.46
Under California law, an independent contractor is someone who performs a specific service for a specific price.49 The person or business paying the independent contractor can control the result they want, but generally has no authority to control the way the independent contractor achieves the result.50
Immediate Family Members
Individuals employed by their parents, spouse, or child are not protected by California’s anti-discrimination laws.51
Temporary Employees (Temps)
Temporary employees (sometimes called temps) are generally protected by California’s anti-discrimination and anti-harassment laws.52
If the temp was hired by an agency and the agency assigned them to work for a business, the temp will sometimes be an employee of both the agency and business. Meaning, they can hold both the temp agency and the business responsible for unlawful age discrimination.53
A temp does not have to be compensated directly by a temp agency or a business to be considered an employee. Rather, courts look at the amount of control the temp agency or business exercises over the worker.54
Unpaid interns are generally not considered employees because the employer has not agreed to hire them.55 In 2015, however, California law was extended to include unpaid interns under the Fair Employment and Housing Act.56
Thus, the law now protects unpaid interns from age discrimination and age-based harassment.57
Unpaid interns represent one of the few positions in which a worker will have the right to be free from age discrimination despite not being an employee.
Volunteers are not employees and are generally not protected from age discrimination in California.58
It used to be that volunteers were also not protected against age-based harassment. But, beginning in 2015, the law was changed to protect volunteers from harassment.59
Which Actions Are Prohibited
In general, it is unlawful for employers to discriminate against employees over the age of 40 on the basis of their age. Discrimination includes treating individuals differently, due to age, with respect to:
- Their compensation,
- The terms or privileged of their employment,
- Work conditions, and
- Job assignments.60
Importantly, age discrimination is illegal at almost any stage of employment, including:
- During hiring (or before taking applications if recruiting materials state that a certain age is preferred),61
- While considering promotions,
- When making raise determinations,
- When making determinations about laying off or firing employees,
- While considering training opportunities or by setting age limits for training programs,
- When setting retirement requirements,
- When determining employee benefits, and
- During apprentice programs.62
Examples of Age Discrimination
Age discrimination can take many shapes, so it is important to be aware of subtle and not so subtle ways an employer might be harassing or discriminating against their older employees. Several common examples of potentially-actionable claims of age discrimination include the following:
- An employer rewards younger, less-experienced employees with promotions and work opportunities instead of older ones, despite high performance and expertise.
- An employee older than 40 receives an unexpected demotion for no apparent reason.
- An employee older than 40 loses a job for no apparent reason.
- An employee older than 40 is not hired because the employer wanted a younger-looking person to fulfill the job duties.
- An employee older than 40 is turned down for a promotion because the company wanted to hire someone younger from outside the company.
- Company layoffs where only older individuals are let go.
- An employee older than 40 receives a negative job evaluation because for fabricated reasons.
- An employee older than 40 is constantly harassed by their supervisors and coworkers about their age in such a way that creates a hostile work environment.
Age-Related Policies and Practices
Both state and federal laws prohibit this kinds of policies and practices if they have a “disparate impact” on applicants or employees age 40 or older if the policy is unrelated to the job’s requirements.63 These kinds of policies can be unlawful even if the policy was adopted without a deliberately discriminatory motive.64
In most cases, the elements of a disparate impact claim based on age discrimination are as follows:
- The worker was an employee or applicant of a covered employer,
- The employer adopted a practice or policy that had a disproportionately-adverse effect on workers age 40 or over,
- The practice or policy had no clear relationship to the job’s requirements,65 and
- The worker was harmed by the policy.66
If the employee meets these elements, the employer then must show evidence of a business justification for the employment practice. An employer can satisfy this by showing that the challenged action is related to safe and efficient job performance and is consistent with business necessity.67
Put simply, policies that appear to be age neutral but apply more harshly to older workers are unlawful unless the employer can prove they are based on safety or a reasonable factor other than age.
A company that announces it will not hire managers with more than 25 years of experience. Although this policy is not discriminatory on its face, it has a disparate impact on older employees. It would likely constitute unlawful age-based discrimination.
Age Discrimination and Benefits Protections
Federal law specifically protects employee’s benefit plans under the Age Discrimination in Employment Act (“ADEA”).68 Generally, employers cannot reduce benefits based on age.
There is, however, an exception to this rule if the cost of providing the benefit increases with age. In that case, the employer must incur the same cost for providing the benefits to older workers as it does for younger workers in order to comply with the law.69
An employer spends the same amount of money to buy life insurance for younger and older workers. The younger workers receive greater coverage for the same premium due to the insurance company’s pricing arrangement. The employer does not violate ADEA because the cost of life insurance tends to increase with age.
Harassing employees in the workplace on the basis of age can constitute unlawful discrimination.70 Harassment is unlawful when it is so frequent or severe that it creates a hostile or offensive work environment or when it results an employment decision that is adverse to the employee.71
Unlike normal discrimination claims, the law does not require employees to be damaged or harmed in any way by the offending conduct. A claim of unlawful harassment is complete simply by the harassment itself.72 The law does not, however, prohibit simple teasing or isolated incidents of age-based harassment that are not very serious.73
A supervisor constantly making offensive or derogatory remarks about an employee’s age can constitute unlawful discrimination.
Exceptions to Age Discrimination Rules
Bona Fide Occupational Qualifications (BFOQ)
An employer has the right to discriminate against an employee over the age of 40 if that decision is based on a bona fide occupational qualification (sometimes abbreviated “BFOQ”).74
A bona fide occupational qualification is an employment practice that:
- Excludes a group of individuals on the basis of their age,75
- Is justified because nearly all of the people excluded are unable to safely and efficiently perform the job,76 and
- Without the requirement, the employer’s business operations would be undermined.77
If these requirements are met, the employer has a right to exclude all persons within the particular group. That is true even if a particular employee or applicant is capable of safely and efficiently performing the job.78
The mandatory retirement age for commercial airline pilots is 65. Although this number is set by law, it is essentially the same as a determination that age can be a BFOQ
Employers should be careful before using a bona fide occupational qualification as an excuse to discriminate against employees over the age of 40. Some courts have treated the BFOQ excuse as a very narrow one that should rarely be used.79 If a court rejects an employer’s proposed BFOQ, the consequences can be costly.
Tenured faculty members at certain qualified institutions of higher learning can be forced to retire. The institution’s retirement policy, however, must permit reemployment of those faculty members on a year-to-year basis.80
Physicians who work for a professional medical corporation and are at least 70 years of age may be forced to retire.81 This exception to California’s anti-discrimination laws only applies if the bylaws or articles of the professional medical corporation provide for compulsory retirement.82
Bona Fide Executives and High Policymakers
Good-faith age limitations are allowable when private employers impose mandatory retirement ages for certain executives or high policymaking employees.83 Those employees, however, must be entitled to annual retirement benefits of at least $27,000.00 and at least 65 years of age.84
Bona Fide Seniority System
Under federal law, it is not unlawful for an employer to observe the terms of a bona fide, good faith seniority system.85 A good faith seniority system is one that recognizes job tenure and allocates employment rights, benefits and wages on that basis, but was not created with the intent to discriminate.
A good faith seniority system cannot require or permit the involuntary retirement of employees based on age.86
Enforcing a Worker’s Rights: Filing a Claim
Do Older Employees Need a Lawyer?
Employees are not required to have a lawyer to file a claim against their employer. But it is often a good idea to have one.
The law can be complex and very few cases are straightforward. Even if the facts are strong in an employee’s case, an experienced employment law attorney can sometimes help by:
- Collecting all legally-relevant information,
- Applying the law to the evidence and related facts in a compelling way,
- Avoiding the strategic pitfalls many nonlawyers are unfamiliar with, and
- Maximizing the financial damages the employee receives.
Of course, there is no guarantee that a lawyer will be able to accomplish these things. But, when employees handle their legal disputes without representation, there is sometimes an increased risk that they will lose or severely harm their case due to legal missteps that a lawyer would have avoided.
If the employer contests the employee’s claim, which happens often, legal arguments will have to be made and evidence might need to be presented. This might occur in court of with an administrative agency, sometimes according to complicated legal procedures. It can be a good idea to have a lawyer who is familiar with doing those things.
In many cases, attorneys are willing to work with no upfront costs on the part of the employee. Instead, they will take a percentage of what the employee wins at the end of the case.
It is also possible that the employer will be required to pay the employees legal fees at the end of the case. Some laws place the burden of those expenses on the employer because it is easier for them to afford it.87
So, although there is no legal requirement that an employee must have an attorney, navigating the claims process can be much easier if the employee has one. Feel free to visit the explanation of our firm’s contingent fee pricing.
Claims Start with a Government Agency
When an employee decides to sue their employer, they must first file a written complaint with an administrative agency.88 Employees pursuing an age discrimination claim cannot go straight to court with a lawsuit.89 This process is referred to as “exhausting” the employee’s administrative remedies.
If the employee is bringing claims under state law only, the complaint should be filed with California’s Department of Fair Employment and Housing (the DFEH).90 The DFEH complaint process is explained in our article: How to File a Work Discrimination Complaint with California’s DFEH.
If the employee is bringing claims under federal law, the complaint can be filed with either the DFEH or the U.S. Equal Employment Opportunity Commission (the EEOC). When a complaint is filed with the DFEH, courts consider it to have also been filed with the EEOC.91
So, filing the complaint in either agency satisfies the employee’s obligations in this regard. If the employee chooses to file with the EEOC, they can find more information about the process here.
If, after a complaint is filed with the appropriate administrative agency, the claim is not resolved by either the EEOC or the DFEH, the employee will be issued a document called a right-to-sue letter.92 The employee may then pursue their case by bringing a lawsuit in court.
The Deadline to File (Statute of Limitations)
Employees are up against strict deadlines when pursuing relief for age discrimination. If the employee is bringing claims under state law, they must file a complaint against the employer with California’s Department of Fair Employment and Housing (the DFEH) no later than one year from the date of the alleged discriminatory act.93
If the employee has gone through the administrative process and has been issued a right-to-sue letter from the DFEH, the employee with then have one year to file a lawsuit in civil court against the employer.94 This one-year clock starts ticking on the date the right-to-sue letter is issued.
If the employee is pursuing federal relief, they must file a complaint with either the DFEH or the U.S. Equal Employment Opportunity Commission (the EEOC) within 300 days of the alleged discriminatory act.95 If either agency issues a right-to-sue letter, the employee will have 90 days to file a lawsuit in court based on federal claims.96
There are, of course, exceptions to these time limits. You should speak with a lawyer immediately if you are unsure whether your claim is time-barred.
Retaliation is Prohibited
Employees are often worried about the consequences of pursuing an age discrimination claim against their employer. But it is important to understand that employers may not terminate or take adverse employment actions against their older employees simply because the employee opposed the employer’s age-based discrimination policies.97
Similarly, an employee who has suffered age discrimination has a right to file a complaint, testify, or assist in any proceeding in an age discrimination claim against their employer. The employer may not retaliate against them for doing so.98
Settling an Age Discrimination Claim
An employee can waive their rights in a settlement agreement. They can also waive their rights when participating in an employment termination program or an exit incentive program.99 The waiver is only valid if it was entered into knowingly and voluntarily by the employee.100
In this kind of situation, the waiver or release agreement will provide that the employee agrees to drop their legal action against the employer (or to not take one if none has been initiated). In return for signing the waiver, the employer will normally give the employee an incentive to leave voluntarily, such as a severance pay package that exceeds the company’s standard policy.
Importantly, however, federal law provides specific minimum standards that must be met for a waiver to be considered knowing and voluntary and, therefore, valid.
Among other requirements, a valid waiver must:
- Be in writing and with understandable language;
- Refer specifically to the Age Discrimination in Employment Act (ADEA) claims and rights;
- Be given in exchange for something valuable that the worker is not already entitled to receiving;
- Advise the worker to consult with an attorney before signing the waiver; and
- Give the worker at least 21 days to think about the waiver and at least 7 days to revoke it after signing it.101
29 U.S.C. §§ 623, 631, subd. (a); Gov. Code, §§ 12926, subd. (b) [“‘Age’ refers to the chronological age of any individual who has reached his or her 40th birthday.”], 12940, subd. (a) [employer may not refuse to hire a candidate or discriminate an employee on the basis of race, skin color, national origin, religion, disability, gender, sexual orientation, or age]; Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766 [“Both California and federal law prohibit employers from unlawfully discriminating against employees on the basis of their age.”].Footnote 1
29 U.S.C. §§ 621–634.Footnote 2
Gov’t Code, § 12900 et seq.Footnote 3
29 U.S.C. § 630(b).Footnote 4
Gov. Code, § 12926, subd. (d).Footnote 5
Linsley v. Twentieth Century Fox Film Corp. (1999) 75 Cal.App.4th 762, 766.Footnote 6
Peatros v. Bank of America (2000) 22 Cal.4th 147, 165 [“[T]he ADEA generally disclaims any preemptive effect on state law by impliedly preserving such law.”]; 29 U.S.C. § 633(a); Simpson v. Providence Washington Ins. Group (9th Cir. 1979) 608 F.2d 1171, 1175, citing Simpson v. Alaska State Com. for Human Rights (D.Alaska 1976) 423 F.Supp. 552, 556 [“Congress intended only to establish ‘minimum’ standards in the [ADEA]”].Footnote 7
Gov. Code, § 12941 [“The Legislature further reaffirms and declares its intent that the courts interpret the state’s statutes prohibiting age discrimination in employment broadly and vigorously, in a manner comparable to prohibitions against sex and race discrimination, and with the goal of not only protecting older workers as individuals, but also of protecting older workers as a group, since they face unique obstacles in the later phases of their careers.”].Footnote 8
Gov. Code, § 12926, subd. (b)Footnote 9
Gov. Code, § 12940, subd. (a); 29 U.S.C. § 631(a); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.Footnote 10
Gov. Code, § 12926, subd. (d), 12940, subd. (a).Footnote 11
Gov. Code, § 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d).Footnote 12
Gov. Code, § 12940, subd. (j)(4)(A) [defining “employer” to include “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract,” for the purposes of harassment]; Page v. Superior Court (1995) 31 Cal.App.4th 1206, 1217 [“FEHA’s prohibition against harassment is not limited to employers of five or more persons. Rather, FEHA expressly makes the harassment prohibition applicable to employers of ‘one or more persons.'”].Footnote 13
Gov. Code, § 12925, subd. (d) [“‘Person’ includes one or more individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, and receivers or other fiduciaries.”], 12926, subd. (d) [“‘Employer’ includes any person regularly employing five or more persons . . . .”].Footnote 14
See, e.g., Jennings v. Marralle (1994) 8 Cal.4th 121, 130 [“Thus, while the Legislature has made a broad statement of policy, it has not extended that policy to small employers. The FEHA gives plaintiff no remedy as defendant does not regularly employ five or more persons.”].Footnote 15
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(1) [“‘Regularly employing’ means employing five or more individuals for each working day in any twenty consecutive calendar weeks in the current calendar year or preceding calendar year regardless of whether the employee’s worksite is located within or outside of California.”].Footnote 16
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(1) [“[E]mployees located outside of California are counted in determining whether employers employ five or more individuals for coverage purposes . . . .”].Footnote 17
See Code of Regs., tit. 2, § 11008, subd. (c) [“Any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written. . . .”].Footnote 18
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(2) [“For purposes of ‘counting’ the (five or more) employees, the individuals employed need not be employees as defined above; nor must any of them be full-time employees. Employees on paid or unpaid leave, including CFRA leave, leave of absence, disciplinary suspension, or other leave, are counted.”].Footnote 19
Gov. Code, § 12926, subd. (d).Footnote 20
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(5) [“A religious association or religious corporation not organized for private profit is not an employer under the meaning of this Act; any non-profit religious organization exempt from federal and state income tax as a non-profit religious organization is presumed not to be an employer under this Act. Notwithstanding such status, any portion of such tax exempt religious association or religious corporation subject to state or federal income taxes as an unrelated business and regularly employing five or more individuals is an employer.”].Footnote 21
See Gov. Code, § 12926.2.Footnote 22
Cal. Code of Regs., tit. 2, § 11008, subd. (d)(6) [“‘Employer’ includes any non-profit corporation or non-profit association other than that defined in subsection (5).”].Footnote 23
Gov. Code, § 12926, subd. (d) [“‘Employer’ includes . . . any person acting as an agent of an employer . . . .”]; Cal. Code of Regs., tit. 2, § 11008, subd. (d)(3) [“Any person or individual acting as an agent of an employer, directly or indirectly, is also an employer.”].Footnote 24
Gov. Code, § 12940, subd. (a).Footnote 25
Civ. Code, § 2295.Footnote 26
Rental Housing Owners Assn. of Southern Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 91 [“An agency relationship is a bilateral matter created through mutual consent.].Footnote 27
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 492 [“The Court of Appeal in Nichols identified the ‘right to control’ as a significant factor in defining an agency relationship.”]; see also Laird v. Capital Cities/Abc (1998) 68 Cal.App.4th 727, 741.Footnote 28
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 493 [“[A]n agency relationship exists where the principal dictates, not just the desired result of the enterprise, but also ‘the manner and means’ by which such result is achieved . . . .”].Footnote 29
Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 503 [“A franchisor will be liable if it has retained or assumed the right of general control over the relevant day-to-day operations at its franchised locations that we have described, and cannot escape liability in such a case merely because it failed or declined to establish a policy with regard to that particular conduct.”].Footnote 30
Reno v. Baird (1998) 18 Cal.4th 640, 645 [holding that only the employer, and not individual supervisors, may be sued and held liable under FEHA’s prohibition against discriminatory hiring, firing, and personnel practices]; Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173 [“[T]he employer is liable for retaliation . . . but nonemployer individuals are not personally liable for their role in that retaliation.”]; Le Bourgeois v. Fireplace Mfg. (1998) 68 Cal.App.4th 1049, 1054–1055 [“[D]iscrimination claims under the FEHA . . . may be maintained against employers, but not against supervisors individually.”].Footnote 31
Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 77 [“The fact that the employer is liable via the respondeat superior effect of the ‘agent’ language provides protection to employees even if individual supervisors are not personally liable. Hence we do not find this consideration to compel a conclusion that the Legislature must have intended to impose personal liability on individual supervisory employees.”].Footnote 32
Gov. Code, § 12940, subd. (j)(3) [“An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”]; see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 707 [“When the harasser is a supervisor, the employer is strictly liable for the supervisor’s actions. [Citation.] When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action).”].Footnote 33
Gov. Code, § 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d)(4).Footnote 34
Gov. Code, § 12926, subd. (d), 12940, subd. (a); Cal. Code of Regs., tit. 2, § 11008, subd. (d)(4) [“‘Employer’ includes the State of California, any political or civil subdivision thereof, counties, cities, city and county, local agencies, or special districts, irrespective of whether that entity employs five or more individuals.”].Footnote 35
Gov. Code, § 12940, subd. (a).Footnote 36
See generally Gov. Code, § 12940.Footnote 37
Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842 [“In order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee.”].Footnote 38
Gov. Code, § 12926, subd. (c); Cal. Code of Regs., tit. 2, § 11008, subd. (c) [“‘Employee.’ Any individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.”]; but see Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842 [“[T]he FEHA does not define an employer, employee, or what constitutes employment.”].Footnote 39
Cal. Code of Regs., tit. 2, § 11008, subd. (c).Footnote 40
Cal. Code of Regs., tit. 2, § 11008, subd. (c); Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 633 [“[T]the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.”]; but see Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 155 [person appointed to a volunteer position by a city was not an “employee” because he served without pay].Footnote 41
Gov. Code, § 12940; Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 144.Footnote 42
Gov. Code, § 12940, subd. (a).Footnote 43
Cal. Code of Regs., tit. 2, § 11008, subd. (a) [“‘Applicant.’ Any individual who files a written application or, where an employer or other covered entity does not provide an application form, any individual who otherwise indicates a specific desire to an employer or other covered entity to be considered for employment.”].Footnote 44
Cal. Code of Regs., tit. 2, § 11008, subd. (a) [“Except for recordkeeping purposes, “Applicant” is also an individual who can prove that he or she has been deterred from applying for a job by an employer’s or other covered entity’s alleged discriminatory practice.”].Footnote 45
Sada v. Robert F. Kennedy Med. Ctr. (1997) 56 Cal.App.4th 138, 153 [“The Act does not prohibit an employer from rejecting a job applicant because she is less qualified than the person selected.”].Footnote 46
Cal. Code of Regs., tit. 2, § 11008, subd. (c)(1) [“‘Employee’ does not include an independent contractor as defined in Labor Code section 3353.”].Footnote 47
Gov. Code, § 12940, subds. (j)(1) [“It is an unlawful employment practice . . . [f]or an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because . . . age . . . to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract”], (j)(5).Footnote 48
Labor Code, § 3353.Footnote 49
Labor Code, § 3353.Footnote 50
Gov. Code, § 12926, subd. (c) [“Except as provided by Section 12926.05, ’employee’ does not include any individual employed by his or her parents, spouse, or child . . . .”]; Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 632 [noting that FEHA excludes persons employed by close relatives].Footnote 51
Cal. Code of Regs., tit. 2, § 11008, subd. (c)(5) [“An individual compensated by a temporary service agency for work to be performed for an employer contracting with the temporary service agency is an employee of that employer for such terms, conditions and privileges of employment under the control of that employer. Such an individual also is an employee of the temporary service agency with regard to such terms, conditions and privileges of employment under the control of the temporary service agency.”].Footnote 52
Cal. Code of Regs., tit. 2, § 11008, subd. (c)(5); see also Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 [“The possibility of dual employment is well recognized in the case law. ‘Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers — his original or “general” employer and a second, the “special” employer.'”], quoting Miller v. Long Beach Oil Dev. Co. (1959) 167 Cal.App.2d 546, 549.Footnote 53
Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1625-1626 [“[T]he employment relationship for FEHA purposes must be tied directly to the amount of control exercised over the employee. . . . The law has long recognized that a contracting employer acts as an ’employer’ for purposes of applying state and federal antidiscrimination laws.”].Footnote 54
See Gov. Code, § 12926, subd. (c); Cal. Code of Regs., tit. 2, § 11008, subd. (c); but see Cal. Code of Regs., tit. 2, § 11008, subd. (k) [“Unpaid interns and volunteers may or may not be employees.”].Footnote 55
Gov. Code, § 12940, subds. (c), (j), & (l), as amended by Stats. 2014, ch. 302, § 1, eff. Jan. 1, 2015.Footnote 56
Gov. Code, § 12940, subds. (c), (j), & (l).Footnote 57
See Estrada v. City of Los Angeles (2013) 218 Cal.App.4th 143, 155 [unpaid volunteer found to not be an employee within the meaning of FEHA].Footnote 58
Gov. Code, § 12940, subds. (j), as amended by Stats. 2014, ch. 302, § 1, eff. Jan. 1, 2015.Footnote 59
29 U.S.C. § 631(a); Gov. Code, § 12940, subd. (a).Footnote 60
29 USC § 623(e); Gov. Code, § 12940, subd. (a).Footnote 61
29 U.S.C. §§ 623, 626, 630; Gov. Code, § 12940.Footnote 62
Gov. Code, §12941; 29 U.S.C. § 623(f)(1); Griggs v Duke Power Co. (1971) 401 U.S. 424; Scotch v. Art Inst. of California (2009) 173 Cal.App.4th 986, 1002.Footnote 63
Int’l Bhd. of Teamsters v. United States (1977) 431 U.S. 324, 335, fn. 15 [97 S.Ct. 1843, 1854].Footnote 64
Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 [“Prohibited discrimination may . . . be found on a theory of disparate impact, i.e., that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.”].Footnote 65
Cal. Civil Jury Instructions, no. 2502.Footnote 66
Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.Footnote 67
29 U.S.C. § 630(l) [“The term ‘compensation, terms, conditions, or privileges of employment’ encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.”].Footnote 68
29 U.S.C. § 623(f)(2)(B).Footnote 69
Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121 [“Under the FEHA it is an unlawful employment practice for an employer or the agent of an employer to harass an employee because of age.”]; Gov. Code, § 12940, subd. (h).Footnote 70
McGinest v. GTE Serv. Corp. (9th Cir. 2004) 360 F.3d 1103, 1113 [“In evaluating the objective hostility of a work environment, the factors to be considered include the ‘frequency of discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'”], quoting Nichols v. Azteca Rest. Enters. (9th Cir. 2001) 256 F.3d 864, 872.Footnote 71
Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1352 [“for FEHA purposes, no loss of tangible job benefits is necessary to establish harassment.”].Footnote 72
Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 [118 S.Ct. 2275, 2283]; Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 519 [“This determination requires judges and juries to exercise ‘[c]ommon sense, and an appropriate sensitivity to social context’ in order to evaluate whether a reasonable person in the plaintiff’s position would find the conduct severely hostile or abusive.”].Footnote 73
Gov. Code, § 12940 [“It is an unlawful employment practice, unless based upon a bona fide occupational qualification . . . .”]; 29 U.S.C. § 623(f)(1).Footnote 74
Or other basis protected by FEHA.Footnote 75
Green v. State of California (2005) 132 Cal.App.4th 97, 115 [“[D]efendant must show that all or substantially all disabled persons are unable to perform the job duties . . . safely and efficiently.”].)Footnote 76
Title 2, Section 11010, of the California Code of Regulations provides: “Bona Fide Occupational Qualification (BFOQ). Where an employer or other covered entity has a practice that on its face excludes an entire group of individuals on a basis enumerated in the Act (e.g., all women or all individuals with lower back defects), the employer or other covered entity must prove that the practice is justified because all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.” (Cal. Code of Regs., tit. 2, § 11010, subd. (a); see also Green v. State of California (2007) 42 Cal.4th 254, 274, fn. 4.)Footnote 77
Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 796 [“If the employer carries his burden of proof all persons within an otherwise protected class may be excluded from employment without inquiry as to whether certain members of the class may, in fact, be capable of safe and efficient job performance.”].Footnote 78
See, e.g., Johnson Controls v. Fair Employment & Housing Comm. (1990) 218 Cal.App.3d 517, 541 [“The availability of a BFOQ defense is ‘an extremely narrow exception to the general prohibition of discrimination . . . .’ [Citations.]”]; Bohemian Club v. Fair Employment & Housing Comm. (1986) 187 Cal.App.3d 1, 19 [same].Footnote 79
Gov. Code, § 12942, subd. (c)(1).Footnote 80
Gov. Code, § 12942, subd. (c)(2).Footnote 81
Gov. Code, § 12942, subd. (c)(2).Footnote 82
29 U.S.C. § 631(c).Footnote 83
Gov. Code, § 12942, subd. (c)(3).Footnote 84
29 U.S.C. § 623(f)(2)(A); see also Gov. Code, § 12940, subd. (a)(5)(A) [permitting “rehiring on the basis of seniority”].Footnote 85
29 U.S.C. § 623(f)(2)(A).Footnote 86
Gov. Code, § 12965, subd. (b) [“In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”].Footnote 87
Gov. Code, § 12960, subd. (b).Footnote 88
Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [“Under California law ‘an employee must exhaust the . . . administrative remedy’ provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) . . . .”]; Williams v. City of Belvedere (1999) 72 Cal.App.4th 84, 90 [“Before a person may file a civil complaint alleging a violation of this statute, he or she must first file an administrative claim with the DFEH.”].Footnote 89
Gov. Code, § 12960, subd. (b).Footnote 90
Surrell v. Cal. Water Serv. (9th Cir. 2008) 518 F.3d 1097, 1104 [“Although Surrell never filed a charge directly with the EEOC, her charge filed with the State Employment Department is deemed filed with the EEOC pursuant to a worksharing agreement between the two entities.”].Footnote 91
Gov. Code, § 12965, subd. (b) [“If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”].Footnote 92
Gov. Code, § 12960; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492 [“As for the applicable limitation period, the FEHA provides that no complaint for any violation of its provisions may be filed with the Department ‘after the expiration of one year from the date upon which the alleged unlawful practice or refusal to cooperate occurred . . . .'”].)Footnote 93
Gov. Code, § 12965, subd. (d)(2).Footnote 94
42 U.S.C. §§ 2000e-5(e)(1), 12117.Footnote 95
42 U.S.C. §§ 2000e-5(f)(1), 12117.Footnote 96
Gov. Code, § 12940, subd. (h).Footnote 97
Gov. Code, § 12940, subd. (h).Footnote 98
See 29 U.S.C. § 626(f).Footnote 99
See 29 U.S.C. § 626(f)(1).Footnote 100
See 29 U.S.C. § 626(f).Footnote 101