Discrimination in Employment

Overview

  • Federal and California equal employment opportunity laws prohibit employment discrimination on the following bases:
  • Race
  • Color
  • National origin or ancestry
  • Sex
  • Marital status
  • Religion
  • Age over 40 years
  • Physical and mental disability
  • Medical condition

The California Fair Employment and Housing Act, known as FEHA, also prohibits discrimination on the basis of sexual orientation.

In addition, under FEHA, protected characteristics include any perception that a person has, or is associated with one who has, any of those characteristics.

Federal Statutes

The major Federal statutes prohibiting discrimination in employment are the following:

  • Title VII of the Civil Rights Act of 1964;
  • The Age Discrimination in Employment Act of 1967;
  • The Rehabilitation Act of 1973
  • The Vietnam Era Veterans Readjustment Assistance Act of 1974
  • The Pregnancy Discrimination act of 1977
  • The Americans with Disabilities Act of 1990
  • The Civil Rights Act of 1991
  • The Family and Medical Leave Act of 1992
  • The Uniformed Services Employment and Reemployment Rights Act of 1994

TITLE VII OF THE CIVIL RIGHTS ACT OF 1964

Title VII provides that it is unlawful for an employer to do any of the following:

  • Fail or refuse to hire, or discharge any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of that individual's race, color, religion, sex, or national origin;
  • Limit, segregate, or classify employees in any way that would deprive or tend to deprive any individual of employment opportunities, or otherwise would adversely affect his or her status as an employee, because of the individual's race, color, religion, sex, or national origin; and
  • Retaliate against any person for opposing any practice forbidden or made unlawful by Title VII or for testifying or otherwise participating in a proceeding under Title VII.

FEHA provides that all of the following are unlawful employment practices, unless based on a bona fide occupational qualification or on applicable Federal or California security regulations:

  • For an employer to refuse to hire or employ a person, or refuse to select the person for a training program leading to employment, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
  • For an employer to bar or discharge any person from employment, or from a training program leading to employment, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
  • For an employer to discriminate against any person in compensation, or in terms, conditions, or privileges of employment, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
  • For a person to discriminate against any person in selection or training in any apprenticeship training program or any other training program leading to employment, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.
  • For an employer or employment agency to print or circulate, or cause to be printed or circulated, any publication, or to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, or any intent to make any such limitation, specification, or discrimination. However, this provision does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
  • For an employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition. This provision does not, however, prevent an employer or employment agency from inquiring into the ability of an applicant to perform job-related functions or from responding to an applicant's request for reasonable accommodation. Nor does this provision prevent an employer or employment agency from requiring a medical or psychological examination or making a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job-related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
  • For an employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition. However, an employer or employment agency may require any examinations or inquiries that it can show to be job-related and consistent with business necessity, or conduct voluntary medical examinations, including voluntary medical histories which are part of an employee health program.
  • For any employer, employment agency, or person, to discharge, expel, or otherwise discriminate against any employee because the employee has opposed any practices forbidden under FEHA, or because the employee has filed a complaint, testified, or assisted in any proceeding under FEHA.
  • For a person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under FEHA, or to attempt to do so.
  • For an employer, employment agency, apprenticeship training program or any training program leading to employment, or any other person, to harass an employee or applicant, or a person providing services pursuant to a contract, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, sexual orientation, or age.
  • For an employer, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
  • For an employer to refuse to hire or employ an applicant for employment, or to refuse to select an applicant for a training program leading to employment, or to bar or discharge an applicant or employee from employment or from a training program leading to employment, or to discriminate against an employee in compensation or in terms, conditions, or privileges of employment, because of a conflict between the employee's religious belief or observance and any employment requirement, unless the employer demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the employee from those duties that conflict with the employee's religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship on the conduct of the business.
  • For an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. However, nothing in FEHA requires an accommodation that produces undue hardship to the operation of an employer's business.
  • For an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
  • For an employer to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
  • For an employer to adopt or enforce a policy that limits or prohibits the use of any language in the workplace, unless both (1) the language restriction is justified by a business necessity; and (2) the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed, and of the consequences of violating the language restriction. "Business necessity", for this purpose, means an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a less-discriminatory impact.

It is a violation of FEHA to take any of the above actions against an applicant for employment or employee because of perception that the person has, or is associated with one who has, any of the protected characteristics listed above.

FEHA does not subject an employer to liability for, or prevent an employer from, refusing to hire or from discharging an employee with a physical or mental disability, or medical condition, where the employee, because of the disability or medical condition, is unable to perform the essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee's health or safety or the health or safety of others even with reasonable accommodation.

FEHA applies, with regard to certain of its provisions, to all of the following:

  • Employers;
  • Labor organizations;
  • Apprenticeship and training programs;
  • Employment agencies; and
  • Persons who engage in sexual harassment or retaliation or who aid or abet employment discrimination.

California private employers and their agents are covered by FEHA, including individuals, partnerships, associations, corporations, limited liability companies, legal representatives, trustees, trustees in bankruptcy, receivers, or other fiduciaries.

Private employers are not covered by FEHA unless they employ five or more persons, except when a discrimination claim involves harassment. In harassment cases, employers are covered if they employ one or more persons.

Protected Classifications

Race and Color Discrimination

Title VII and FEHA prohibit employment discrimination based on race or color.

Race discrimination involves identifiable classes of persons subject to discrimination solely because of their ancestry or ethnic characteristics

Title VII prohibits discriminatory preference for any group, minority, or majority, and therefore bars race discrimination against white persons as well as black persons.

Employment discrimination based on association with people of a particular race is also prohibited for FEHA purposes. This includes a perception that a person is, or is associated with one who is, a member of a particular race.

Sex Discrimination

California law

Both Title VII and FEHA prohibit sex discrimination in employment. Sex discrimination is a distinction based on gender. Both male and female employees are protected.

For purposes of FEHA, sex includes, but is not limited to, pregnancy, childbirth, medical conditions related to pregnancy or childbirth, and gender. "Gender" includes a person's gender identity and gender-related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth.

Employment decisions that reflect gender-based stereotyping are also unlawful. Similarly, FEHA's prohibition of sex discrimination outlaws gender-based stereotyping, since FEHA defines sex as including an employer's perception of an employee's or applicant's identity, appearance, or behavior. However, FEHA does not prevent an employer from requiring an employee to adhere to reasonable workplace appearance, grooming, and dress standards that are not precluded by other provisions of State or Federal law, so long as the employer allows an employee to appear or dress consistently with the employee's gender identity.

Employment discrimination based on sex, plus another characteristic, such as family responsibilities, is also unlawful. For example, an employer may not refuse to hire women with preschool-age children, while at the same time hiring men with preschool-age children, even if the persons hired are predominantly female. Different hiring policies for such similarly-situated women and men are unlawful.

An employer may violate Title VII or FEHA by adopting facially neutral employment practices or criteria that in fact fall more harshly on one sex than another. Thus, employment policies that make distinctions based on traits exclusively or predominantly possessed by one sex, such as minimum height and weight requirements, may be unlawful.

Contributions and Benefits

FEHA generally protects the terms or conditions of any bona fide retirement, pension, employee benefit, or insurance plan if it is in accordance with customary and reasonable or actuarially sound underwriting practices. However, requiring unequal employee contributions to fringe benefit plans by similarly-situated male and female employees, and establishing different amounts of basic benefits for such employees under fringe benefit plans may violate FEHA.

Under Title VII, an employer may not require female employees to make larger contributions to receive the same monthly pension benefits as male employees simply because women, as a class, live longer than men. Nor may a female be paid lower monthly benefits on that basis. Title VII prohibits discrimination with respect to individuals and, thus, precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. Even a true generalization about a class is an insufficient reason for discrimination against an individual.

Benefit Eligibility

Pension or retirement plans that, with respect to benefits, establish different optional or compulsory retirement ages based on sex or that otherwise differentiate in benefits on the basis of sex are unlawful under Federal or State law.

Marital Status Discrimination

FEHA prohibits discrimination based on marital status. "Marital status" is defined as an individual's state of marriage, non-marriage, divorce or dissolution, separation, widowhood, annulment, or other marital state.

No Federal statute prohibits marital status discrimination as such. However, sex discrimination may occur if an employer maintains policies that forbid or restrict the employment of married women that are not applicable to married men. Such rules may constitute sex discrimination even if they are not directed against all females, but only against married females, as long as sex is a factor in their application.

Sexual Orientation Discrimination

Title VII does not forbid discrimination on the basis of sexual orientation as such. However, nothing in Title VII bars a claim of sex discrimination merely because the employee and the employer, or the person charged with acting on behalf of the employer, are of the same sex.

FEHA does prohibit discrimination on the basis of sexual orientation. For this purpose, "sexual orientation" means heterosexuality, homosexuality, or bisexuality, and it includes the perception that a person has, or is associated with one who has, a given sexual orientation.

National Origin or Ancestry Discrimination

Both Title VII and FEHA prohibit national origin discrimination. It is generally not unlawful to discriminate on the basis of citizenship or alienage, and employers may lawfully require employees to be United States citizens, or refuse to hire non-citizens. However, employers may not discriminate against aliens because of race, color, religion, sex, or national origin; and an employer may not use a citizenship requirement as a pretext for national origin discrimination.

Under FEHA, it is an unlawful employment practice for an employer to adopt or enforce a policy that limits or prohibits the use of any language in the workplace, unless both the language restriction is justified by a business necessity; and the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed, and of the consequences of violating the language restriction. Business necessity, for this purpose, means an overriding legitimate business purpose making the language restriction necessary to the safe and efficient operation of the business; effective as a means of fulfilling the business purpose it is supposed to serve, and the only means of accomplishing the business purpose equally well with a less-discriminatory impact.

Employers may deny employment opportunities to illegal aliens or aliens who are not authorized to work in the United States. In fact, it is unlawful for employers knowingly to hire, recruit, or refer for a fee, unauthorized aliens, or to continue to employ a person who is or becomes an unauthorized alien. "Unauthorized aliens" are aliens who, with respect to employment at a particular time, are not at that time either (1) lawfully admitted for permanent residence, or (2) authorized to be so employed by the Immigration and Nationality Act or by the United States Attorney General.

Disability Discrimination

Federal Law -- Americans with Disabilities Act

The Americans with Disabilities Act (ADA) provides that an employer may not discriminate against a qualified individual with a disability because of that individual's disability on such matters as:

  • job application procedures;
  • the hiring, advancement, or discharge of employees;
  • employee compensation;
  • job training;
  • terms, conditions, and privileges of employment; and
  • limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of the applicant or employee because of disability.

Federal sources of protection against disability discrimination also include the Rehabilitation Act of 1973, which applies only to Federal contractors and recipients of Federal funds, and the Vietnam Era Veterans Readjustment Assistance Act of 1974 (VEVRAA), which also covers Federal contractors.

"Disability" Under ADA Defined

Under the ADA, disability means the following:

  • A physical or mental impairment that substantially limits one or more of the major life activities of an individual.
  • A record of such an impairment.
  • Being regarded as having such an impairment.

Physical or mental impairment means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

  • neurological,
  • musculoskeletal,
  • special sense organs,
  • respiratory including speech organs,
  • cardiovascular,
  • reproductive,
  • digestive,
  • genitourinary,
  • hemic and lymphatic,
  • skin, and
  • endocrine.

It also includes any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

All of the following are excluded from the ADA definition of disability:

  • Homosexuality and bisexuality;
  • Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
  • Compulsive gambling, kleptomania, or pyromania; and
  • Psychoactive substance use disorders resulting from current illegal use of drugs.

Major life activities for purposes of the ADA are those activities that are of central importance to daily life. Some examples are walking, seeing, hearing, and performing manual tasks.

The ADA's definition of disability includes being regarded as having a qualifying impairment. However, an individual who is regarded as having a qualifying impairment, but who does not in fact have that impairment, is not entitled to reasonable accommodation under the ADA. Once an employer becomes aware of the need for accommodation, the ADA imposes a mandatory obligation on the employer to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. This obligation extends beyond the first attempt at accommodation, and continues when the employee asks for a different accommodation or when the employer is aware that the initial accommodation is failing and further accommodation is needed. However, the ADA requires only reasonable accommodation. For example, an unpaid leave of absence may be a reasonable accommodation if it does not pose an undue hardship on the employer.

On the other hand, an employer ordinarily need not offer an accommodation that would violate the employer's bona fide, established seniority rules whether those seniority rules were unilaterally adopted by the employer or were the result of a collective bargaining agreement. The employee's failure to participate in the interactive process may relieve the employer of the duty to engage in further attempts to identify and implement a reasonable accommodation.

California Law

"Physical Disability"
  • Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (1) affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; and (2) limits a major life activity;
  • Any other health impairment not described in the first bulleted item, above, that requires special education or related services;
  • Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment as described in the first two bulleted entries, above, which is known to the employer;
  • Being regarded or treated as having, or having had, any physical condition that makes achievement of a major life activity difficult; and
  • Being regarded or treated as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in the first two bulleted entries, above.

A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult. Whether a major life activity is limited is to be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

Major life activity is to be broadly construed and includes physical, mental, and social activities, and working. FEHA's list of disabilities is not restrictive; physical disability includes all physical conditions. Physical disabilities include, but are not limited to, chronic or episodic conditions such as HIV/AIDS, hepatitis, epilepsy, seizure disorder, diabetes, multiple sclerosis, and heart disease.

The FEHA definition of physical disability also includes any perception that a person has, or is associated with one who has, a physical disability.

Physical disability, under FEHA, specifically excludes sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

The protection afforded under FEHA is intended to be broader than that afforded under the ADA. For example, to constitute a physical disability under FEHA, an impairment that limits a major life activity need not be a substantial limitation, as is required under the ADA. Under FEHA, an impairment may be found to limit the specific major life activity of working if the actual or perceived working limitation affects either a particular employment or a class or broad range of employment. Moreover, even if working is a major life activity under the ADA, a working limitation may not be substantial enough to trigger ADA protection unless it applies to a broad class of jobs.

Under FEHA, regardless of any Federal law, whether a condition limits a major life activity is to be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity .

FEHA definition of physical disability, as well as the definition of mental disability, is to be construed so that applicants and employees are protected from discrimination due to an actual or perceived impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling, and the protection of FEHA extends to persons who are erroneously or mistakenly believed to have any physical condition that limits a major life activity. If, the ADA definition of disability would provide broader protection to disabled individuals than the FEHA definition, then under California law, that broader ADA protection is available.

"Medical Condition" Under FEHA Defined

FEHA also prohibits discrimination based on medical condition. "Medical condition" means a genetic characteristic, or any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. For this purpose, a genetic characteristic is either of the following:

  • Any scientifically or medically identifiable gene or chromosome, or combination or alteration of genes or chromosomes, that is known to be a cause of a disease or disorder in a person or his or her offspring, or is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder; or
  • Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or his or her offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
"Mental Disability'' Under FEHA Defined

Under FEHA, mental disability includes, but is not limited to, the following:

  • Having any mental or psychological disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.
  • Any other mental or psychological disorder or condition not described in the first bulleted item, above, that requires special education or related services.
  • Having a record or history of a mental or psychological disorder or condition described in the first two bulleted items, above, which is known to the employer business.
  • Being regarded or treated by the employer as having, or having had, any mental condition that makes achievement of a major life activity difficult.
  • Being regarded or treated by the employer as having or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability described in either of the first two bulleted items, above.

Major life activity is to be broadly construed and includes physical, mental, and social activities, and working. Whether such an activity is limited is to be determined without regard to mitigating measures such as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.

Mental disability under FEHA includes clinical depression and bipolar disorder. Mental disability under FEHA, however, does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance disorders resulting from the current unlawful use of controlled substances or other drugs.

The FEHA definition of mental disability also includes any perception that a person has, or is associated with one who has, a mental disability.

Scope of Employer's Duty to Accommodate

FEHA requires employers to reasonably accommodate the physical or mental disabilities of any applicant or employee, unless the employer can demonstrate that such an accommodation would result in undue hardship to the operation of the business. It is an unlawful employment practice for an employer to fail to engage in a timely, good-faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or medical condition.

FEHA defines reasonable accommodation as either of the following:

  • making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities; or
  • job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

If more than one effective accommodation is possible, the employer is not obligated to choose the best one or the one requested by the employee; rather, the employer has discretion to choose the least expensive or most convenient effective accommodation.

When reassignment to a different position is necessary to accommodate an employee, it is not sufficient for the employer simply to advise the employee to check a job listing. Rather, the employer has a duty to take some kind of affirmative action, and the employer is relieved of such a duty only if reassignment would impose an undue hardship on the employer or if there is no vacant position for which the employee is qualified.

Undue Hardship

Under FEHA, if granting reasonable accommodation to an employee imposes an undue hardship on an employer, then the accommodation need not be given. The employer has the burden of demonstrating that a particular accommodation would produce undue hardship to its operation.

FEHA defines undue hardship to mean an action requiring significant difficulty or expense when considered in light of all of the following factors:

  • The nature and cost of the accommodation needed;
  • The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations on the operation of the facility;
  • The overall financial resources of the business, the overall size of the business of a business with respect to the number of employees, and the number, type, and location of its facilities;
  • The type of operations, including the composition, structure, and functions of the workforce of the business; and
  • The geographic separateness and administrative or fiscal relationship of the facility or facilities.

In addition, an employer does not violate FEHA for refusing to hire or discharging an employee with a physical or mental disability or medical condition if the employee is unable to perform the essential duties of the job with reasonable accommodation, or cannot perform them without endangering the health or safety of the employee or others, even with reasonable accommodation.

Notice to Employer of Disability

The employee has an obligation to notify the employer of the disability. That triggers the employer's obligation to participate with the employee in an effort to determine a reasonable accommodation. If an employer knows of an employee's disability, the employer has a duty to accommodate, even if the employee does not request specific accommodation.

Click here for an ADA worksheet which can be used to determine if an employee is covered by federal or California disability discrimination law.

Age Discrimination

The Age Discrimination in Employment Act (ADEA) and FEHA prohibit age discrimination in employment. These statutes protect persons who are at least forty years old.

The ADEA provides that it is unlawful for an employer to do any of the following:

  • Fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of the individual's age;
  • Limit, segregate, or classify employees in any way that would deprive or tend to deprive any individual of employment opportunities, or otherwise would adversely affect the individual's status as an employee, because of the individual's age; and
  • Reduce the wage rate of any employee to comply with the ADEA.

The ADEA also prohibits retaliation against any person for opposing any practice forbidden or made unlawful by the ADEA or for participating in proceedings under the ADEA.

Although the ADEA exemption for bona fide employee benefit plans protects retirement plans that meet specified requirements, no such plan may require or permit the involuntary retirement of any person covered by the ADEA because of the age of that person.

For FEHA purposes, "age'' refers to the chronological age of any individual who has reached their fortieth birthday. FEHA's prohibition of age discrimination does not prevent an employer from refusing to employ an individual because of his or her age if the law compels or provides for that refusal. Also, the following employer actions do not, in and of themselves, constitute unlawful age discrimination:

  • Promotions within existing staff;
  • Hiring and promotion on the basis of experience and training;
  • Rehiring on the basis of seniority and prior service with the employer; and
  • Hiring under an established recruiting program from high schools, colleges, universities, or trade schools.

Voluntary Early Retirement

Retirement plans may permit individuals to elect early retirement at a specified age at their own option. Furthermore, incentives to retire early do not constitute discrimination under the ADEA as long as the employee receiving the offer may choose to keep working.

Because of the magnitude of a decision to accept early retirement, however, employees must be given a reasonable amount of time to make a considered choice.

Mandatory Retirement

FEHA requires an employer to permit an employee to continue the employee's employment beyond any retirement date contained in any private pension or retirement plan if the employee, within a reasonable time, indicates in writing a desire to continue working beyond the specified retirement date and can demonstrate the ability to continue working. The employment must continue as long as the employee demonstrates ability to perform the functions of the job adequately and the employer is satisfied with the quality of the work performed.

However, employers may compel the retirement of employees who have attained the age of sixty-five years, who were employed in a bona fide executive or high policymaking position for the two-year period immediately before retirement, and who are entitled to an immediate non-forfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of those plans, that equals, in the aggregate, at least twenty-seven thousand dollars.

Mandatory retirement is permitted under the ADEA with regard to an employee who:

  • has attained the age of sixty-five years;
  • is employed in a bona fide executive or high policymaking position for the two-year period immediately before retirement; and
  • is entitled to an immediate non-forfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, that equals, in the aggregate, at least forty-four thousand dollars.

Religious Discrimination

Both Title VII and FEHA prohibit employment discrimination based on religion. Under Title VII, the term religion includes all aspects of religious observance and practice, as well as belief. All forms and aspects of religion, however eccentric, are included in the definition of "religion," unless they cannot be, in practice and with honest effort, reconciled with a business-like operation. Religious creed as used in FEHA, includes any traditionally recognized religion, as well as beliefs, observances, or practices that an individual sincerely holds and that occupy in his or her life a place of importance parallel to that of traditionally recognized religions. "Religious creed" also includes any perception that a person is a member, or is associated with one who is a member, of a particular religious creed. Under FEHA, "religious belief or observance" includes, but is not limited to, an observance such as a Sabbath or other religious holy day, and reasonable time necessary for travel before and after a religious observance.

FEHA and Title VII require an employer to accommodate an individual's religious beliefs and practices, unless accommodation would impose an undue hardship on the employer. Failure reasonably to accommodate, absent undue hardship, is an unlawful employment practice.

Under Title VII, the accommodation duty arises after an employee or prospective employee notifies an employer of need for religious accommodation. The burden is then on the employer to undertake initial steps toward accommodation. An employee is under no burden to propose specific means of accommodation. However, the employee does have a duty to cooperate with the measures suggested by the employer. The employee's duty to cooperate arises only after the employer has made its suggestions of possible accommodations, and if the employer does not make an effort to accommodate the employee prior to taking adverse action against the employee, the employee's duty of cooperation does not arise.

If both the employee and the employer propose a reasonable accommodation, the employer is not required to accept the employee's proposal. However, if the employer's proposal does not eliminate the employee's religious conflict, the employer must either accept the employee's proposal or demonstrate that the proposal would cause an undue hardship.

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