The California Fair Employment and Housing Act (commonly known as FEHA) prohibits an employer from discriminating against any employee because that employee is over forty (40) years old. Because there is rarely “smoking gun” evidence of age discrimination, circumstantial evidence will usually suffice. An inference of age discrimination is usually raised by showing that the employee (a) belongs to a protected class (i.e., is over forty (40)), (b) was subjected to an adverse employment action (like termination, demotion, suspension), and (c) similarly situated employees from outside the protected class were treated differently and more favorably. In addition to raising an inference of discrimination in the manner set forth above, an employee may do so via statistical evidence, comparative evidence, or direct evidence. Direct evidence, such as discriminatory comments made by the decisionmaker, is often the most persuasive. However, in larger companies, it may be possible to use statistical analysis to demonstrate that the employer systematically discriminates against a particular race in hiring, promotions and terminations. Such evidence would raise an inference that the action taken against a particular employee of that race was also infected by racial animus or prejudice. Comparative evidence also raises an inference of discrimination by showing that different rules and standards were applied for persons of different races.
An employer is also prohibited from harassing an employee based on his protected age category.
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