Age Discrimination in California

Government Code section 12941(a) of the Fair Employment and Housing Act (“FEHA”) provides in pertinent part that it is unlawful employment practice for an employer to discharge, dismiss, or otherwise discriminate against any individual over the age of 40 on the basis of age.

California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S.792 for trying claims of discrimination. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354. The so-called “McDonnell Douglas” test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” Id.

The first step in the test is for the employee to establish a prima facie case of discrimination. The particular elements of a prima facie case may vary depending on the particular facts.” Id. In the context of a failure to promote, the elements are as follows: (1) Employee was a member of a protected class, (2) they applied and were qualified for an available job, (3) they were rejected, and (4) some other circumstance suggests discriminatory motive. Id. at 355.

Once the employee establishes a prima facie case, a presumption of discrimination arises. Id. The burden then shifts to the employer to rebut the presumption by producing evidence “sufficient to ‘raise a genuine issue of fact’ and to ‘justify a judgement for the [employer],’ that its action was taken for a legitimate, nondiscriminatory reason.” Id. at 355-356 (internal citations omitted). Only if the employer sustains its burden does the presumption of discrimination disappear. Id. at 356.

The next step in the test would be for the employer to “attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.” Id. (internal citations omitted).

Even in cases where discrimination is found, there is seldom blatant “smoking-gun” evidence of discrimination.