California CRD’s New Age Discrimination Fact Sheet

To coincide with California Governor Gavin Newsom’s proclamation that May is Older Californians Month, the California Civil Rights Department (CRD) published a new fact sheet on age discrimination protections in the workplace. While Older Californians Month highlighted Californians 60 years and older, the CRD’s guidance reminds employers that California’s age discrimination protections begin at the age of 40 and includes several helpful examples of the types of conduct that may constitute age discrimination.

Under California’s Fair Employment and Housing Act (FEHA), it’s illegal for employers to discriminate against or harass employees or job applicants based on any protected characteristic, including age. Specifically, individuals who are 40 years old or older are protected from workplace age discrimination.

The CRD’s fact sheet describes the FEHA’s age discrimination protections and provides common examples of age discrimination in the employment context, including:

• Asking about a job applicant’s age;
• Giving lower wages or benefits, or denying someone a promotion because of age; and
• Layoffs/forced retirement of older workers.

It also includes some helpful examples of what more subtle forms of age discrimination and/or harassment can look like in certain circumstances.

For example, in the hiring process, employers must ensure their job advertisements and descriptions avoid any potentially discriminatory language. Employers cannot limit how much experience applicants may have, require candidates to be “digital natives” (people who grew up using certain types of technology) or have college email addresses. Additionally, when advertising a job, employers cannot use language that implies an age preference, such as “looking for someone young and energetic to join the team” or “searching for a recent college graduate or early career professional.”

The CRD’s guidance also points out when age-related comments may constitute harassment and create a hostile work environment. This may include, for example, joking that someone has been working there since the “dark ages,” mocking someone’s clothes or hair as “old-fashioned” or repeatedly making comments such as “okay Boomer!”

According to the CRD, each year, it investigates hundreds of age discrimination complaints, which highlights the need for California employers to continue periodically reviewing their policies and practices to ensure they don’t discriminate in the hiring process or any other employment decisions, and to keep up to date with California’s mandatory harassment prevention training requirements.

James W. Ward, J.D., Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber

CalChamber members can read more about Age Discrimination in the HR Library. Not a member? See how CalChamber can help you.