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Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Written: March 2009

In California it is illegal to discriminate or harass any employee who is over the age of 40. Pursuant to the law, age, like race and gender, is a protected class. The Age Discrimination in Employment Act (ADEA), enacted in 1967, serves to protect individuals who are 40 years of age or older from employment discrimination based on age. Pursuant to the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment (hiring, firing, promotion, layoff, compensation, benefits, job assignments, apprenticeships and training). The ADEA applies to employers with 20 or more employees.

Despite the hefty penalties that typically result from an age discrimination case, employers just don't seem to get it. In Fiscal Year 2005, the Equal Employment Opportunity Commission ("EEOC") received 16,585 age discrimination claims, of which 14,076 were resolved with payments of $77.7 million (not including monetary benefits obtained through litigation). In 2007, the number of age discrimination complaints filed increased to 19,103.

Examples of unlawful behavior that can trigger a successful age discrimination lawsuit include:

• Posting a job offer seeking college graduates, or qualified employees in a certain age bracket;
  
  
• Hiring a younger job applicant over a more qualified older employee just because the other applicant was younger;
  
  
• Denying older workers training or educational classes offered to other younger employees;
  
  
• Denying a promotion to an older worker, and hiring a younger person to fill the position;
  
  
• Creating a hostile work environment for older workers by discussing work after hours at a club or bar to which the older employees are not invited, making jokes or snide comments about the older workers, or routinely assigning undesirable or demeaning tasks to the older workers;
  
  
• Engaging in acts designed to encourage the older workers to quit; and
  
  
• Implementing a layoff that even with no discriminatory intent, disproportionately affects the older people at the company.

This article explores three examples where an employer's business plans and policies subjected them to age discrimination lawsuits, and presents suggestions on how to avoid age discrimination lawsuits and claims.

Apprenticeship Programs Can Lead to an Age Discrimination Lawsuit.

On January 7, 2005, the court extended the protections granted under the ADEA to apprenticeship programs. In EEOC v. Seafarers International Union, a suit brought on behalf of more than 40 applicants denied entry into an apprenticeship program requiring all applicants to be between the ages of 17 and 35, the Forth Circuit Court of Appeals upheld an EEOC regulation extending the protections of the ADEA to apprenticeship programs. The court reasoned that: (i) age discrimination in apprenticeship programs could hinder older workers from gaining employment; (ii) apprenticeship programs are frequently a workplace entry point; and (iii) failing to extend protections to older workers goes against the underlying purpose of the ADEA.

A Company Plan to Present a Youthful Appearance Can Lead to An Age Discrimination Lawsuit.

In Machinchick v. PB Power, Inc., an employer terminated a 63-year old employee allegedly for "poor performance" after the company implemented a new business development strategy and business plan in which the company stated its intent to "hand-pick employees whose mindset resides in the 21st Century." A company supervisor thereafter announced that he planned to "strategically hire some younger engineers and designers to support and be mentored by the current staff," questioned the plaintiff-employee about when he planned to retire, sent an email to human resources describing the plaintiff-employee as having "low motivation to adapt to a rapidly changing business environment and new company management style" (an "age stereotyping remark"): and then fired the plaintiff-employee without notice and replaced him with a younger employee. Machinchick sued his employer claiming that his termination violated the ADEA. The trial court granted the employers summary judgment motion, and on January 25, 2005, the Fifth Circuit Court of Appeals reversed and remanded the case back to trial. The Appellate Court reasoned that a reasonable jury could find that a supervisor's comments about retirement and the employee's age were motivating factors in the employer's decision to terminate Machinchick. This case is a sobering reminder that careless remarks by upper-level management can be interpreted as evidence of unlawful bias (here, age discrimination). Employers should exercise caution when commenting on business strategy and employee motivation.

Employment Policies That Have A Disparate Impact On Older Employees Will Lead to an Age Discrimination Lawsuit.

Prior to May of 2005, the Circuit Court of Appeals were divided as to whether plaintiffs bringing age discrimination claims had to prove an intent to discriminate, or merely a "disparate impact" on older workers. While the Ninth Circuit Court of Appeals (which includes California) allowed disparate impact claims under the ADEA, other circuit courts disagreed and required the plaintiff prove intent. On March 30, 2005, in Smith v. City of Jackson, Mississippi, The U.S. Supreme Court resolved the issue.

In Smith, the Supreme Court ruled that an older employee (40 years of age or older) need not prove that a defendant-employer intended to discriminate, only that as a result of the defendant's facially neutral employment policies a "disparate impact" resulted-- that the employer's policy had a disproportionately negative impact on older employees. The Supreme Court, however, did note that it is not enough for a plaintiff to allege simply a disparate impact on older workers, or to show that such an impact in fact occurred. Rather, the Supreme Court held that plaintiffs bringing an ADEA claim based on "disparate impact" must: (1) identify the specific practice that had an adverse impact on older workers and (2) show that the employer's decision that resulted in a disparate impact was not based on a "reasonable factor other than age." The Court also explained in dicta that an employer is not required to show that it had absolutely no other, less discriminatory, way to achieve its goal. According to the Supreme Court, so as long as the employer's decision is made with a valid nondiscriminatory goal in mind, and as long as the means used by the employer to achieve that nondiscriminatory goal are reasonable, a plaintiff cannot establish a valid claim for disparate impact for age discrimination under the ADEA.

What California Employers Can Do To Reduce the Possibility of an Age Discrimination Lawsuit.

While the Court's ruling in Smith extends additional benefits to future age discrimination plaintiffs, it also serves as a source of guidance for employers who seek to avoid liability for disparate impact age discrimination claims. The decision in Smith is a reminder of the need for employers to self-police their employment practices and to pay particular attention to the unintended effects of their policies on older workers. Specific things that employers can do include:

• Don't include age preferences, limitations or specifications in job postings, and make sure your job postings do not give the impression that applicants form a particular age group are preferred;
  
  
• Don't ask a job applicant their age or date of birth;
  
  
• Don't deny benefits to older employees;
  
  
• Don't assign menial tasks to older employees;
  
  
• Don't enable or allow younger employees to create a hostile work environment for the older workers (e.g offensive jokes, discussing and making business decisions after work at clubs or bars where the older workers are not invited or dissuaded from attending, etc..);
  
  
• Eliminate any stated retirement age, unless you fall into one of the ADEA's exceptions and are sure you can objectively justify it;
  
  
• Review current employment practices and policies concerning hiring, promoting, compensation and benefits, reductions-in-force and retirement to confirm they will not disproportionately and adversely affect workers over the age of 40;
  
  
• If certain practices or policies are affecting workers over the age of 40 adversely, evaluate whether there are reasonable factors other than age to justify the discrepancy; and
  
  
• Consult with counsel if you are in doubt about the effects of any particular employment practice.

Update:
In January of 2008, the California Supreme Court agreed to hear Reid v. Google, Inc., 156 Cal.App.4th 424 (2007) in which the 52 year old plaintiff alleged: (1) Google fired him because "he was not a cultural fit;," (2) he was referred to as "old man" and "fuddy duddy" and told that his ideas were "obsolete" and "too old to matter;" and (3) statistical analysis of Google's performance reviews revealed that younger workers disproportionately received higher ratings and better bonuses. Google, Inc. defended stating that: (1) the plaintiff was terminated solely because the unit in which he worked was being dismantled; (2) the remarks were just stray remarks; and (3) the statistical analysis performed by the plaintiff contained too small of a sample. The Court of Appeals reversed the trial court's summary adjudication ruling that the plaintiff presented sufficient evidence to create a triable issue of fact for a jury to hear. The California Supreme Court is expected to hear the case and will decide whether to uphold the validity of the "stray remark" doctrine, which prohibits a case of age discrimination to be based on isolated discriminatory remarks or comments that are unrelated to the decision-making process.

If you would like the assistance of a Los Angeles, California employment law attorney to advise your small or medium sized business on employee matters, please do not hesitate to call 818-849-5206, or Email Melissa C. Marsh.

Related Articles:

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• How To Set Up A Telecommuting Policy and Simultaneously Limit Wage and Overtime Claims
  
  
• Employers - Employee E-mail and Text Messages Are Private, Absent an Employee Policy to the Contrary
  
  
• Intra-Company Communications Spawn Employee Defamation Lawsuits
  
  
• Preventing Sexual Harassment Claims

California employment lawyer based in Sherman Oaks and West Hollywood. We are available to serve small to midsize businesses throughout Los Angeles County, including: West Hollywood, Beverly Hills, Miracle Mile, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.

© 2009 Melissa C. Marsh. All Rights Reserved.

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