I'd like to have an older person on my team for cognitive diversity. But I don't want to break the law.
As Attorney Spencer states, California and Federal law do not prohibit "reverse" age discrimination, which distinguishes age from other protected categories. However, it took the U.S. Supreme Court to settle the issue in the matter of General Dynamics Land Systems v. Cline, 540 U.S. 581 (2004), where the Court said the ADEA ("Age Discrimination in Employment Act") does not prohibit an employer from offering certain benefits only to workers over 50 which were not extended to workers aged 40-49. To my knowledge, no California case is contrary in interpreting the FEHA ("Fair Employment and Housing Act").
However, I am not entirely convinced that your reason for preferring an older person -- i.e., promoting "cognitive diversity" -- could not result in a violation. (I am assuming that the phrase "cognitive diversity" refers to the different life experiences and perspectives of individuals of different ages. I am further assuming that your business would benefit from the collective experiences of employees at various stages of life. Perhaps I assume too much? If so, disregard the discussion below.)
Now consider the following hypothetical: You currently employ a 30-year-old employee, a 45-year-old employee, and a 60-year-old employee. Together, you consider these three employees to represent "cognitive diversity." The 30-year-old employee quits. Now you seek a replacement. Because you value "cognitive diversity," you now have a "piece" missing -- the "young" piece. So you try to replace the "young" piece by only interviewing employees under 40.
So now you have a problem because you are discriminating against employees over 40. You may try to get around it by arguing that "cognitive diversity" is a "bona fide qualification" or that "business necessity" requires it. But an older person might believe that despite her chronological age, she is quite young on the "cognitive" spectrum. And she may be right. After all, is "cognitive diversity" something that can be empirically tested?
Here is another hypothetical: Suppose you employ the 30, 45, and 60-year-old employees mentioned above. A potential client/customer walks in who is 35 years old. You believe that your 30-year-old employee will be in the best position to service this client because they are a "cognitive" match. In that case, you may have once again discriminated against the 45 and 60-year-olds.
In other words: Be careful.
Best of luck to you.
I disagree with attorney Chen. It is perfectly legal to favor a job applicant who is older over job applicants who are younger. The only age discrimination protection laws are in the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (ADEA), which includes the Older Workers Benefit Protection Act (OWBPA). Both of these age discrimination laws operate in one direction only: it is illegal to discriminate against older individuals in favor of younger individuals. It is NOT illegal to discriminate against younger individuals in favor of older individuals. The whole purpose of the age discrimination laws is to protect older applicants and employees.
In FEHA, Government Code section 12926(b) defines "age" as (b) "chronological age of any individual who has reached his or her 40th birthday."
Then, in section 12940(a), FEHA prohibits "an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, AGE, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment."
The ADEA's definition of AGE is the same (40 and older) and its prohibitions are the same.
Therefore, an employer is prohibited from limiting employment opportunities for people 40 years or older but it is perfectly free to limit employment opportunities for people 39 and younger, at least with respect to the age discrimination prohibition.
Marilynn Mika Spencer
The Spencer Law Firm
2727 Camino del Rio South, Suite 140
San Diego, CA 92108
(619) 233-1313 telephone // (619) 296-1313 facsimile
No. The law generally prohibits employers from having discriminatory policies in the workplace. Such policies violate the law unless the employer can show some "business necessity" for the policy - i.e., that there is an overriding and clearly job-related need for the policy that there is no alternative practice to the policy that would achieve the business goals just as effectively.
Employment law is often complicated and fact specific. Therefore, you may want to speak with an employment attorney regarding your intended hiring practice.
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