Age Discrimination Plaintiffs Still Have Options Under California Law

In Gross v. FBL Financial Services, the United States Supreme Court struck a blow to age discrimination plaintiffs across the nation. But California law, including the Fair Employment and Housing Act (FEHA), still provides protections for California employees - creating a more level playing field in employment law litigation.

Gross v. FBL Financial Services Changes the Rules for Employees Dismissed Because of Age

In Gross, Justice Thomas, writing for the majority, held that a plaintiff employee who alleges that he or she has suffered adverse job consequences because of age must show that age was the but-for cause of the adverse job consequence - that is, the plaintiff wouldn't have suffered the adverse job consequence if it had not been for the plaintiff's age - to successfully pursue a claim for age discrimination under the federal Age Discrimination in Employment Act (ADEA). Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343, 2351 (2009).

The Supreme Court's decision in Gross has roiled the employment law community. First, the decision was based on an issue only raised on appeal before the Supreme Court in the respondent employer's brief but not tried in the trial court - appellate courts rarely address matters not argued before a trial judge. Second, the decision decoupled interpretation of the ADEA from Title VII of the Civil Rights Act of 1964, an unexpected move considering that the ADEA was based in part on language from Title VII.

At trial, the plaintiff employee alleged age discrimination under the ADEA, but relied on a legal principle from a Title VII civil rights case, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the plaintiff needs to show that age is a motivating factor, but not necessarily the only factor, involved in his or her termination. After the plaintiff makes this showing, the employer must then show that regardless of age, the plaintiff would have been discharged. This is called a burden switch and it has been common practice for ADEA plaintiffs to rely on the Price Waterhouse burden switch.

In part by using this burden switch, the employee Gross won at trial. The employer appealed to the Eighth Circuit Court of Appeals, arguing that the plaintiff had not presented "direct evidence" of age discrimination to trigger the Price Waterhouse burden switch. The Eighth Circuit agreed with the employer and reversed.

Gross petitioned to the Supreme Court, which ultimately ruled in the employer's favor, as noted above. The Supreme Court did not even reach the briefed issue on whether "direct evidence" was required under Price Waterhouse since Gross could not show that age was the "but-for" factor in the discharge under the new rule the Supreme Court announced.

California Law May Still Protect Employees Who Allege Age Discrimination After Gross

Gross may have created greater hurdles for employment law plaintiffs seeking protection under the ADEA, but California law, including the Fair Employment and Housing Act, may offer more protection for employees who suffer adverse job consequences because of age discrimination.

In fact, the California State Assembly amended the FEHA in 2002 to insert "age" as a protected class in response to a California appeals court decision that age discrimination in employment was covered by the FEHA. 2002 Cal. Stat. c. 525, 4. The FEHA now prohibits employers from discriminating against an employee because of his or her age, along with other protected classes, such as race and gender. Cal. Gov't Code 12940 (2005).

Since Gross, a federal district court in California has called into question whether age discrimination claims that cannot be proven under the ADEA would get any further under the FEHA, implying that the FEHA is interpreted similarly and provides similar protections as those afforded under the ADEA. Olszewski v. Symyx Technologies, Inc., 2009 WL 1814320 *3, fn.4 (N.D.Cal.).

Because the FEHA is a state law, however, California state courts will determine the scope of the substantive and procedural protections that the FEHA provides for employees who allege they suffered age discrimination. Moreover, the federal court in Olszewski relied on a California case decided before the 2002 statutory changes to the FEHA and before the Gross decision that changed the federal course on procedural protections offered under the ADEA. California courts may decide not to follow the rule announced for the ADEA in Gross when interpreting the FEHA. And regardless of how the courts resolve this issue, the California State Assembly may also take further action.

California State Laws Can Still Help Age Discrimination Plaintiffs

California employees who think they have suffered or will suffer an adverse job consequence, such as a termination, demotion or reassignment of responsibilities, should speak to an experienced employment law attorney for information on the rights they have under the FEHA, the ADEA or other federal and state laws. A knowledgeable attorney can advise you based on your unique circumstances.