Age discrimination in employment is prohibited and gives rise to a private cause of action under federal and California law. Under the federal Age Discrimination in Employment Act (“ADEA)”) it is unlawful for any employer to take an adverse action against an employee “because of such individual’s age.” 29 U.S.C. § 623(a). Under the California Fair Employment and Housing Act (“FEHA”)
[i]t is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
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(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
Gov’t Code §12940.
To establish a prima facie case of discrimination under either law, a plaintiff must show that “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008) (internal citations omitted).[1] McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817].
If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. The burden then shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of fact and to justify a judgment for the employer that its action was not pretext for discrimination but was taken for a legitimate, nondiscriminatory reason.
The issue of pretext is an issue of causation: “there must be a causal link between the employer’s consideration of a protected characteristic and the action taken by the employer.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 215 [152 Cal.Rptr.3d 392, 294 P.3d 49] (Harris).) There must be evidence of a causal relationship between the discriminatory animus and the adverse employment action.
Pretext may be demonstrated by showing “’the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.’” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224 [87 Cal.Rptr.2d 487]; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 [67 Cal.Rptr.2d 483] [pretext may be shown by “’such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them “unworthy of credence,” [citation], and hence infer “that the employer did not act for [the asserted] non-discriminatory reasons”’”]; Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715 [81 Cal.Rptr.3d 406] [court may “take [into] account … manifest weaknesses in the cited reasons [for termination] in considering whether those reasons constituted the real motive for the employer’s actions, or have instead been asserted to mask a more sinister reality”].) “’Pretext may also be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before [the] termination.’” (California Fair Employment & Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th 1004, 1023 [18 Cal.Rptr.3d 906].)
[1] Of course, the burden-shifting framework is only necessary if there is no direct evidence of discrimination.