Category: Age Discrimination

Even though the United States Supreme Court significantly weakened the Age Discrimination in Employment Act in 2009, the Equal Employment Opportunity Commission still fields over 21,000 age discrimination complaints a year, a figure that has risen steadily over the past twenty years. Title VII of the Civil Rights Act also prohibits age discrimination.

California’s anti-age discrimination statute, the Fair Employment and Housing Act, is a little bit broader and works a little differently, and appreciating the differences between these laws could affect the amount of compensation that discrimination victims receive.

ADEA and Title VII

In the early 1990s, lawmakers amended the ADEA to state that age must be the primary factor, as opposed to a contributing factor, for age discrimination claims to stand. So, in Gross v. FBL Financial Services, the Supreme Court held that ADEA plaintiffs could not bring “mixed motives” cases that involved some discriminatory reasons for decisions, and some nondiscriminatory reasons.

In other words, to defeat ADEA claims, employers must not completely refute discrimination claims. Even if age was a factor, there is no discrimination if the employer also had a nondiscriminatory reason for its adverse action against the victim.

There is another distinction as well: the ADEA only applies to employers with more than twenty full-time workers.

Title VII cases work a little differently. Victims must establish prima facie discrimination cases, viz, the victim belonged to a protected class (in this case, the victim was over 40) and the employer took an adverse action against the victim. To defend the claims, the employers must produce nondiscriminatory reasons for the adverse action. Unless the victims can prove that the nondiscrimatory reasons were pretextual, the claims fall.


In contrast, the FEHA applies to employers who have at least five full-time workers, and since so many people work for small employers, this difference is a big advantage.

FEHA cases are a little easier to prove as well. Under California law, there is illegal age discrimination if the:

  • Employer took any adverse action against the employee, including termination, failure to hire, demotion, pay reduction, and any other such moves,
  • Victim’s membership in a protected class was a motivating factor in the adverse action,
  • Victim suffered harm, and
  • Discharge was a substantial factor in bringing about the harm.

So, instead of the but-for causation that the ADEA requires, FEHA plaintiffs must only prove “motivating factor.” In civil court, victims must prove their cases by a preponderance of the evidence, which means more likely than not.

Under both state and federal law, discrimination victims are normally entitled to both economic and noneconomic damages. Punitive damages may be available as well, if there is clear and convincing evidence that the employer acted intentionally or recklessly.

You probably have a discrimination claim if you are a worker over 40 and your boss or potential boss took action against you. For a free consultation, contact an aggressive employment law attorney in San Jose from the Briski Law Firm. Mr. Briski has over twenty-five years of experience.