Various factors come into play as the U.S. workforce ages, not the least of which is competition between younger and older workers for the same jobs. In some states, employers may be tempted to hire younger people who may have less experience, might work for less money and may carry fewer expectations from the work environment than older workers do. In California, however, employers who take this route in staffing their work places while discriminating against older workers are risking costly lawsuits that can be devastating to business.
California's law protecting older workers from age discrimination is known as the Fair Employment and Housing Act -- FEHA. Also referred to as the California Fair Employment and Housing Act, the law, in part, protects workers aged 40 or older from age discrimination in the workplace or in hiring practices. This law is California's primary vehicle for protection from discrimination in employment and housing. The law also provides protection from harassment and retaliation based upon race, religion, disability, marital status and sexual orientation. With regard to age discrimination, FEHA is similar to the federal law, the Age Discrimination in Employment Act -- ADEA -- which offers comparable protections.
Beginning with interviewing applicants, business owners or human resources personnel should be aware that it's illegal to ask any questions related to protected statuses such as age. For example, although a candidate's resume may demonstrate a very lengthy work history, noting comprehensive experience gained from jobs spanning many years, the interviewer cannot ask the applicant's age or any question relating to age. California employers are prohibited by the FEHA to use age to deny employment to any individual who may be 40 years or older. Since you can't legally ask the interviewee's age, any hiring decision should be based only on the applicant's qualifications and ability to do the job.
All employers in California fall under the authority of the FEHA. This includes any state government employers and private businesses, regardless of size. California companies that enlist interns or apprentices are also subject to adhering to the law. As many companies' growth dictates the employment of workers living outside the state, lawsuits may be increasing to determine jurisdiction issues with regard to discrimination, and whether employing California-based businesses with locations outside the state are subject to upholding California's FEHA.
The FEHA provides for lawsuits concerning age discrimination to be heard before an administrative hearing directed by the Fair Employment Housing Commission -- FEHC. Employers may potentially be required to pay back-pay to affected employees, and as much as $150,000 in damages to the claimant, plus administrative fines. Age discrimination cases that are heard in a civil court become much more costly. An offending employer may be required to pay unlimited funds in damages, in addition to attorney's fees, back pay and other expenses.