CRD New Age Discrimination Fact Sheet
California Civil Rights Department Issues New Age Discrimination Fact Sheet
California’s Fair Employment and Housing Act (FEHA) makes it illegal for an employer to discriminate against or harass an employee or job applicant based on certain protected characteristics. One such characteristic is age. The California Civil Rights Department recently published a new Fact Sheet on age discrimination in the workplace to remind employers of California’s age discrimination protections and provide examples of the types of conduct that may constitute age discrimination.
Q: Who is protected from age discrimination under the FEHA?
A: Job applicants and employees who are 40 and older are protected from age discrimination. The law also protects individuals that an employer discriminates against based on the mistaken belief the individual is 40 and older, or based on the individual’s association with someone who is 40 or older.
Q: Can an employer exclude older people when hiring?
A: No. It is against the law for employers to refuse to consider individuals 40 and older as potential candidates when hiring. Avoid:
- Limiting how much experience a candidate can have (avoid setting limits like a candidate should have no more than 5 years’ experience);
- Requiring candidates to have a college email address;
- Requiring candidates to have grown up using certain types of technology (i.e., “digital natives”).
Q: What types of language should an employer avoid when advertising an open job position?
A: When advertising an open position, avoid language such as:
- “Looking for someone young and energetic to join the team;”
- “Seeking a candidate between the ages of 25-30;”
- “Searching for a recent college graduate or early career professional;”
- “Company seeks college student for part-time work;”
- “No senior citizens.”
Q: Can an employer ask a candidate’s age before hiring?
A: No. Generally, employers cannot ask a job candidate about their age, date of birth, or graduation date during the hiring process. This includes not asking age or date of birth:
- on a job application,
- during an interview, or
- during any other pre-hiring conversations, including over email or text message.
However, employers with legal reporting requirements, including those with 100 or more employees, can ask questions that reveal an individual’s age for record-keeping purposes only.
Q: Can an employer pay lower wages and benefits because of age?
A: No. An employer cannot pay employees who are 40 and older less than other employees doing the equivalent work because of their age. Employers also cannot create policies more likely to harm employees who are 40 and older. While employers may pay employees differently based on experience or other non-discriminatory, business-related reasons, they can do so as long as age is not the reason for the difference in pay.
Q: Can an employer deny a promotion because of age?
A: No. Employers cannot deny a promotion or evaluate an individual unequally compared to other candidates simply because they are 40 and older. However, an employer is not obligated to promote an individual who is 40 and older if the younger candidate is more qualified so long as age is not a factor.
Q: Can an employer lay off or force retirement because of age?
A: No. The age of employees who are 40 and older cannot be a factor when making decisions about laying off or firing employees. An employer cannot use the excuse of downsizing to get rid of older workers while only keeping lower cost workers who may be younger. Generally, private employers cannot force an employee to retire just because the employee reaches a specific age over 40.
Q: Can an employer ever fire an employee who is past the age of retirement?
A: Yes. If an employee passes retirement age and the employee’s job performance no longer meets the employer’s standards, the employer can legally fire the employee so long as the standards are not based on age and are not arbitrary.
Q: What are some examples of comments, jokes or insults about age that should be avoided?
A: Some examples of potential age-based harassment to avoid:
- Repeatedly saying things like, “Okay, Boomer!”
- Joking that an employee has been working at the employer since the “dark ages;”
- Mocking an individual’s clothes or hair as “old-fashioned;”
- Refusing to train an employee on new technology due to the individual’s age.
Such comments may create a hostile work environment when they happen often enough to alter the individual’s working conditions.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com .
Sincerely,