CACI 2570 Age Discrimination—Disparate Treatment—Essential Factual Elements

New June 2011; Revised June 2012, June 2013, May 2020

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Read the first option for element 3 if there is no dispute as to whether the employer’s acts constituted an adverse employment action. Read the second option and also give CACI No. 2509, “Adverse Employment Action” Explained, if whether there was an adverse employment action is a question of fact for the jury. If constructive discharge is alleged, give the third option for element 3 and also give CACI No. 2510, “Constructive Discharge” Explained. Select “conduct” in element 5 if the either the second or third option is included for element 3.

Note that there are two causation elements. There must be a causal link between the discriminatory animus based on age and the adverse action (see element 5), and there must be a causal link between the adverse action and the damage (see element 7). (See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81 Cal.Rptr.3d 406].)

Element 5 requires that age discrimination be a substantial motivating reason for the adverse action. (See Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232 [152 Cal.Rptr.3d 392, 294 P.3d 49]; see also CACI No. 2507, “Substantial Motivating Reason” Explained.)

Under the McDonnell Douglas (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof and producing evidence, which is used in California for disparate-treatment cases under FEHA, the employee must first present a prima facie case of discrimination. The burden then shifts to the employer to produce evidence of a nondiscriminatory reason for the adverse action. At that point, the burden shifts back to the employee to show that the employer’s stated reason was in fact a pretext for a discriminatory act.

Whether or not the employee has met the employee’s prima facie burden, and whether or not the employer has rebutted the employee’s prima facie showing, are questions of law for the trial court, not questions of fact for the jury. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr.2d 448].) In other words, by the time that the case is submitted to the jury, the plaintiff has already established a prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision. The McDonnell Douglas shifting burden drops from the case. The jury is left to decide which evidence it finds more convincing, that of the employer’s discriminatory intent or that of the employer’s age-neutral reasons for the employment decision. (See Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1118, fn. 5 [94 Cal.Rptr.2d 579]).

Under FEHA, age-discrimination cases require the employee to show that the employee’s job performance was satisfactory at the time of the adverse employment action as a part of the employee’s prima facie case (see Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321 [115 Cal.Rptr.3d 453]), even though it is the employer’s burden to produce evidence of a nondiscriminatory reason for the action. Poor job performance is the most common nondiscriminatory reason that an employer advances for the action. Even though satisfactory job performance may be an element of the employee’s prima facie case, it is not an element that the employee must prove to the trier of fact. Under element 5 and CACI No. 2507, the burden remains with the employee to ultimately prove that age discrimination was a substantial motivating reason for the action. (See Muzquiz, supra, 79 Cal.App.4th at p. 1119.)

See also the Sources and Authority to CACI No. 2500, Disparate Treatment—Essential Factual Elements.

•Age Discrimination Prohibited Under Fair Employment and Housing Act. Government Code section 12940(a).

•“Age” Defined. Government Code section 12926(b).

•Disparate Treatment; Layoffs Based on Salary. Government Code section 12941.

•“In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell, supra, 188 Cal.App.4th at p. 321.)

•“In other words, ‘[b]y the time that the case is submitted to the jury, … the plaintiff has already established his or her prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision, leaving only the issue of the employer’s discriminatory intent for resolution by the trier of fact. Otherwise, the case would have been disposed of as a matter of law for the trial court. That is to say, if the plaintiff cannot make out a prima facie case, the employer wins as a matter of law. If the employer cannot articulate a nondiscriminatory reason for the adverse employment decision, the plaintiff wins as a matter of law. In those instances, no fact-finding is required, and the case will never reach a jury. [¶] In short, if and when the case is submitted to the jury, the construct of the shifting burden “drops from the case,” and the jury is left to decide which evidence it finds more convincing, that of the employer’s discriminatory intent, or that of the employer’s race or age-neutral reasons for the employment decision.’ ” (Muzquiz, supra, 79 Cal.App.4th at p. 1118, fn. 5.)

•“Because the only issue properly before the trier of fact was whether the [defendant]’s adverse employment decision was motivated by discrimination on the basis of age, the shifting burdens of proof regarding appellant’s prima facie case and the issue of legitimate nondiscriminatory grounds were actually irrelevant.” (Muzquiz, supra, 79 Cal.App.4th at p. 1119.)

•“An employee alleging age discrimination must ultimately prove that the adverse employment action taken was based on his or her age. Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of age discrimination cases. That system necessarily establishes the basic framework for reviewing motions for summary judgment in such cases.” (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr.2d 483], internal citations omitted.)

•“Requiring the plaintiff to show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, … proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris, supra, 56 Cal.4th at p. 232, original italics.)

•“We do not suggest that discrimination must be alone sufficient to bring about an employment decision in order to constitute a substantial motivating factor. But it is important to recognize that discrimination can be serious, consequential, and even by itself determinative of an employment decision without also being a “but for” cause.” (Harris, supra, 56 Cal.4th at p. 229.)

•“While we agree that a plaintiff must demonstrate some basic level of competence at his or her job in order to meet the requirements of a prima facie showing, the burden-shifting framework established in McDonnell Douglas compels the conclusion that any measurement of such competency should, to the extent possible, be based on objective, rather than subjective, criteria. A plaintiff’s burden in making a prima facie case of discrimination is not intended to be ‘onerous.’ Rather, the prima facie burden exists in order to weed out patently unmeritorious claims.” (Sandell, supra, 188 Cal.App.4th at p. 322, internal citations omitted.)

•“A discharge is not ‘on the ground of age’ within the meaning of this prohibition unless age is a ‘motivating factor’ in the decision. Thus, ‘ “an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer’s decision.” ’ ‘[A]n employee claiming discrimination must offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ ” (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 978 [117 Cal.Rptr.2d 647].)

•“[D]ownsizing alone is not necessarily a sufficient explanation, under the FEHA, for the consequent dismissal of an age-protected worker. An employer’s freedom to consolidate or reduce its work force, and to eliminate positions in the process, does not mean it may ‘use the occasion as a convenient opportunity to get rid of its [older] workers.’ ” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)