©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 163 reasonable accommodation cases, where there necessarily is direct evidence of the employer’s motivation. The Court of Appeal concluded that an employer denying an accommodation necessarily treats an employee differently “because of” a disability whenever the disability is a substantial motivating factor in the employer’s decision to subject the employee to an adverse employment action. The Court of Appeal held that the employer was liable, as a matter of law, for a failure to provide a reasonable accommodation, and remanded for a new trial as to damages. 6.4 Special Rules for Age Discrimination Even in California not every case makes it to trial. A 2020 Court of Appeal decision upheld summary judgment against the age discrimination claim of a medical assistant at a healthcare organization who was fired at age 66. Her supervisor and the organization’s executive director had expressed surprise at how old the plaintiff was. But their comments did not express age animus and neither commenter was in the chain of command regarding the decision to terminate her employment. In particular, expressing surprise at the plaintiffs’ age was insufficient to raise more than a weak suspicion of discriminatory animus where it was undisputed that the plaintiff had the physical appearance of a much younger person.100 6.4.1 Salary might not be an age-neutral criterion In America generally, an employer reducing its workforce to cut costs may select employees for dismissal on the basis of their higher salaries, even though a higher salary correlates with experience, which in turn correlates with age. In California it’s different. The FEHA declares that “the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group.”101 6.4.2 Adverse impact theory, with no RFOA defense Until 2005 there was debate over whether federal ADEA claimants could recover on a theory that an employer policy had an adverse impact on individuals over age 40. The U.S. Supreme Court then validated that theory of liability in age cases (just as it had in Title VII race cases). California, meanwhile, previously had declared that “the disparate impact theory of proof may be used in claims of age discrimination.”102 The main defense to a claim of adverse impact is that the policy in question is a business necessity, which is very difficult for an employer to prove. Federal law eases that burden on employers somewhat by recognizing that employers can defend an ADEA adverse-impact claim by showing that the challenged policy was based on reasonable factors other than age (RFOA).103 In California it’s different. While the ADEA provides for an RFOA defense, the FEHA does not. 6.4.3 Publishing ages of entertainment industry employees Coming to the aid of aging actors—at the behest of the SAG-AFTRA actors’ guild—California legislation has aimed to “ensure that information obtained on an internet web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”104 The statute requires commercial on-line entertainment employment service providers to honor subscribers’ requests not to publish age information. The statute suffered an early setback when, in a constitutional challenge, a federal district court held that the statute infringed upon the website operator’s First Amendment right of free speech.105
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