Employees are protected from age discrimination both in hiring and after they begin their employment. While it is not expressly unlawful to ask a job applicant for a date of birth, employers who do so may be creating evidence of an intent to discriminate based on age.

Under FEHA, age discrimination occurs when age (over 40) is a substantial motivating reason for a decision not to hire a job applicant or to:

• Terminate employment
• Require an employee to retire
• Demote or fail to promote an employee
• Reduce pay or fail to give a raise
• Reduce hours
• Take any other action that adversely affects compensation, terms, privileges, or conditions of employment.

Age can be considered when making employment decisions only if it is legitimate to treat older employees less favorably than younger ones. The law refers to that exception as a “bona fide occupational qualification.” For example, public safety concerns might justify imposing a mandatory retirement age on pilots.

The Supreme Court has made clear that age should rarely be considered a bona fide occupational qualification. Employers are instead expected to make individualized decisions about employees based on their job performance.

Employers usually defend age discrimination cases by asserting that they took action against an employee whose job performance was poor. Proving that the employee’s job performance was at least as good as the performance of younger employees is often the key to winning age discrimination cases.