Age discrimination - California

Summary of differences between federal and state regulations

Employer defined

Any employer regularly employing five or more persons is covered. Employers include the state, other government bodies, and private employers. Also subject are labor organizations, employment agencies, and apprenticeship programs.

An exception to the five-employee minimum occurs when harassment is at issue. Every employer employing one or more persons or receiving the services of one or more independent contractor(s) is covered by the prohibition of harassment. Additionally, an employee is personally liable for any unlawful employment harassment of another employee.

Religious associations or religious corporations not organized for private profit may be exempt under certain circumstances. Employees of the federal government are protected from discrimination under federal laws.

Unlawful employment practices

The state unlawful employment practices, as well as the exemptions, are similar to those under the Age Discrimination in Employment Act (ADEA). These include provisions for apprenticeship and other training programs, licenses or certifications, advertisements, and retaliation.

Because California’s Fair Employment and Housing Act covers age discrimination, employees must exhaust state administrative remedies before filing a civil action under the ADEA. A charge must be filed with the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discrimination or within 30 days of receiving notice that the California Department of Fair Employment and Housing will not proceed with a claim, whichever is earlier.

California has adopted a provision similar to the federal law regarding benefit reductions for retirees. Specifically, the state law now provides that the provisions regarding discrimination on the basis of age “do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits.” This provision applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.

Recordkeeping

Employers and covered entities must maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum of two years after the records and files are initially created or received. They must also retain personnel files of applicants or terminated employees for a minimum of two years after the date of the employment action taken.

Upon notice that a verified complaint against it has been filed, entities must maintain and preserve any and all records and files until the complaint is fully and finally disposed of and all appeals or related proceedings terminated.

A licensing board must keep records of applications for licensing or certification for two years following the date of receipt of the applications.

Posting

All employers must post the Department of Fair Employment and Housing’s poster “Harassment or Discrimination in Employment is Prohibited by Law” (DFEH-162).

State

Contact

Department of Fair Employment and Housing, which prosecutes cases before the Fair Employment Housing Commission

Regulations

California Government Code Section 12940-12951

Federal

Contact

Equal Employment Opportunity Commission (EEOC)

Regulations

29 CFR Part 1625, Age Discrimination in Employment Act

29 CFR 1626, Procedures — Age Discrimination in Employment Act

29 CFR 1627, Records to be Made or Kept Relating to Age: Notices to be Posted: Administrative Exemptions