San Diego Employers: Does Your Employee Handbook Address Age Discrimination?

Age discrimination is not allowed by employers in California under both federal and California laws. If your business does not already have policies and procedures in place to prevent discrimination based on age, you should move quickly to rectify the situation. A good San Diego corporate attorney can help with the drafting of policies and procedures. This is also the type of policy that may be included in your employee handbook. Employee handbooks are valuable tools that help set the expectations of both the employees and the employer. Employee handbooks can also help avoid litigation, can help win litigation if suit is filed and, thus, can provide significant cost savings for your business. Some insurers also provide premium discounts if a business has a good employee handbook that is current and is regularly updated.

With respect to employment discrimination based on age, the US Supreme Court recently held that the federal Age Discrimination in Employment Act (“ADEA”) applies to all government employers, regardless of size. See 29 U.S.C. §§ 621-34. This Act was passed by Congress in 1967 and applies to private employers who employ more than 20 persons. The ADEA makes it unlawful for an employer to fire a person because of his or her age and applies to those who are 40 years of age or older. The case decided was Mount Lemmon Fire District v. Guido, Case No. 17-587 (US Supreme Court November 6, 2018). In that case, fire captain Chief Guido and others were discharged from their employment with the Mt. Lemmon Fire District in 2009. Mt. Lemmon is a small town in Arizona. Captain Guido claimed he was fired because of his age — he was 46 years old at the time. The Fire District defended against the ADEA claim by arguing that it was too small — the Fire District had fewer than 20 employees. The matter when to court and, eventually, the US Ninth Circuit in San Francisco held that the 20-employee minimum did not apply to government employers. The US Supreme Court agreed and affirmed the Ninth Circuit’s ruling.

California also bans discrimination based on age. These prohibitions are contained in the California Fair Employment and Housing Act (“FEHA”). Like the federal ADEA, the FEHA prohibits a California employer from discriminating against an employee because of his or her age. As long as the employee is qualified and capable of doing the work, age cannot be used as a factor in hiring decisions or decisions with respect to promotions, pay, assignments, etc. The FEHA protects workers who are 40 years or older. The FEHA is broader than the ADEA because it applies to employers with five or more employees.

Contact San Diego Corporate Law Today

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard can help draft and/or review company policies and procedures, employee handbooks, and can help with any other legal needs of your business.

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