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If you believe that you were not hired/promoted or were terminated/laid off because of your age, can you still have a case if the person given preference is also over 40?
The short answer is “yes.”
It does not matter that the person favored is also over 40 if he is “substantially younger.”
The Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), confirmed that age discrimination can occur even if the person favored is also over 40. In O’Connor, a 56-year-old who was fired and replaced by a 40-year-old sued under the Age Discrimination in Employment Act of 1967 (“ADEA”). The district court granted the defendant’s summary judgment motion and the Court of Appeals affirmed, holding that the plaintiff failed to make out a prima facie case of age discrimination under because he failed to show that he was replaced by someone under the age of 40. The Supreme Court, in an opinion written by Justice Scalia, held that an employee asserting age discrimination need not demonstrate that his replacement was under 40; rather, he must demonstrate that his replacement was “substantially younger.” O’Connor, 517 U.S. at 312. The Court explained:
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Ramit Mizrahi was honored to speak at the UN Women-L.A. Chapter’s HeForShe event on Sunday, August 23, 2015 in Los Angeles, California. Below are her remarks.
Equality in Work
We are fortunate to live in a society where sex discrimination in employment has been unlawful for over 50 years. Yet we still have a long way to go.
Gender Pay Gap
Consider the gender pay gap. According to research by the Institute for Women’s Policy Research, in 2014, women working full-time were earning 82% of what their male peers were earning. Breaking it down further, the wage gap for black and Latina women is even greater, with black women earning 68% and Latina women only 61% of what men do.
One third of working mothers are single mothers, and a staggering 30% of them live in poverty. It is estimated that closing the gender pay gap would pull half of those families.
Yet, in the past decade, the gender pay gap has narrowed by just 1.5%.
Some Causes
Workplace discrimination and inequality persist in many forms.
Decades ago, workers were regularly subjected to overt discrimination. It was perfectly normal to have Help Wanted sections in the newspaper divided by jobs for men and women. Sexual harassment of female employees was common.
The most egregious forms of sex discrimination, harassment, and abuse still happen to the most vulnerable populations among us. For example,
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When the Supreme Court recognized last month in Obergefell v. Hodges, 576 U.S. ___ (2015) that the fundamental right to marry applies to same-sex couples, Americans rejoiced. The Court’s opinion reflected the tipping point we have reached as a nation with broad public acceptance of LGBT rights.
But civil rights activists and allies were quick to point out that there is more work to be done. Pundits observed that in some states, a gay couple could be married in the morning and fired from their jobs for being gay hours later. Indeed, LGBT people in many states still lack protections from discrimination and harassment in employment, housing, and education. Sexual orientation discrimination in employment is not explicitly prohibited under federal law. In California, we are lucky to have the Fair Employment and Housing Act, Government Code section 12940 et seq., which has, since 2000, prohibited discrimination and harassment based on sexual orientation in employment and housing. LGBT people in other states have not been so fortunate.
LGBT workers are protected from sexual orientation discrimination under Title VII
Thanks to a landmark decision by the federal Equal Employment Opportunity Commission (EEOC), however, millions more LGBT workers now have some protections. In a July 15, 2015 decision, the EEOC held that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII applies to employers with at least 15 employees. It prohibits discrimination, harassment, and retaliation based on protected categories, including with respect to hiring, firing, promotions, training, wages, and benefits.
Title VII prohibits discrimination based on sex, race, color, religion, and national origin; it does not explicitly cover discrimination based on sexual orientation. In a 3-2 decision, the EEOC reasoned that sexual orientation discrimination is nevertheless prohibited by Title VII because it is a subset of sex discrimination. The EEOC determined that an air traffic controller who alleged that he was denied a promotion because of his sexual orientation could pursue his claim of sex discrimination. While the 17-page decision is worth reading in full, the excerpts below capture the EEOC’s reasoning.
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On September 26, 2015, Ramit Mizrahi will once again be speaking about the year’s most important employment law cases. The panel will be part of the California Employment Lawyers Association’s 28th Annual Employment Law Conference. She will be speaking alongside Andrew H. Friedman of Helmer Friedman, LLP.
Date and time: September 26, 2015, 9:15 a.m. – 12:00 p.m. (Tentative)
Location: Marriott Oakland City Center
Additional information will be posted once the CELA Conference schedule is finalized.
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On May 4, 2015, the California Supreme Court unanimously decided a case that will be a game-changer for lawsuits brought under California’s Fair Employment and Housing Act (FEHA). In Williams v. Chino Valley Independent Fire District, the Court addressed the issue of when losing FEHA plaintiffs may be required to pay their opponents’ case costs. The Court held that a losing plaintiff may be ordered to pay a prevailing defendant’s costs only if the “court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.”
Williams was a firefighter who sued his employer for disability discrimination in violation of FEHA. Williams lost the case on a summary judgment motion. The trial court then awarded the employer-defendant costs totaling $5,368.88. Williams appealed and the Court of Appeal affirmed.
On review, the California Supreme Court explored two issues:
Is a defendant prevailing in a FEHA action entitled to its ordinary court costs as a matter of right . . . or only in the discretion of the trial court . . . ? And, if the trial court does have discretion, must that discretion be exercised according to the rule applicable to attorney fee awards in certain federal civil rights actions under Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412 (Christiansburg), according to which a prevailing defendant receives its attorney fees only if the plaintiff‘s action was objectively groundless?
The California Supreme Court held that the FEHA allows the court . . .
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08 Apr '15
Whether you are terminated, laid off, or resign voluntarily from your job, your employer must provide you with your final wages in a timely manner. If your employer does not pay your final wages in full and on time, you can seek penalties in addition to the actual wages owed. You may also be able to recover attorney’s fees, costs, and interest if you prevail on an action for unpaid wages. California’s Labor Code lays out an employer’s obligations with respect to the payment of final wages as well as the penalties for failing to comply.
Payment Upon Termination
When an employer terminates or lays off an employee, it must “immediately” pay the employee all earned and unpaid wages. (Labor Code § 201.) The employee must be paid “at the place of discharge.” (Labor Code § 208.)
Payment Upon Resignation
If an employee quits without notice, the employer must provide final wages within 72 hours of the resignation. However, if the employee gives notice 72 hours or more in advance of the actual resignation, then the employee must be paid . . .
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A fascinating report released by the Federal Reserve Bank of New York in March 2015 examines gender differences in executive compensation. The report, titled “Gender and Dynamic Agency: Theory and Evidence on the Compensation of Top Executives,” used data from Standard & Poor’s ExecuComp database to look at the compensation of 40,704 executives (1,312 of whom were female).
The key findings of the report are:
- There is no link between firm performance and the gender of top executives. Thus, the gender pay gap at the executive level cannot be explained by performance differences.
- 93% of the gender pay gap among top executives is accounted for by the fact that female executives receive a far lower percentage of incentive pay — namely, stock options and stock grants — as a percentage of total compensation.
- Women’s compensation has “lower pay-performance sensitivity,” meaning that they gain far less from the positive performance of their firms. When a firm’s value increases by $1 million, it leads to a $17,150 increase in firm-specific wealth for male executives and a $1,670 increase for females.
- In contrast, women suffer more when a firm loses value: “A 1% increase in firm value generates a 13% rise in firm specific wealth for female executives, and a 44% rise for male executives, while a 1% decline in firm value generates a 63% decline in firm specific wealth for female executives and only a 33% decline for male executives.”
A critical point is that the authors showed that there was no link between . . .
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Mizrahi Law is pleased to announce that founder Ramit Mizrahi has been selected for two highly prestigious lists:
- Super Lawyers™ Up-and-Coming 100: 2015 Southern California Rising Stars, and
- Super Lawyers™ Up-and-Coming 50: Women Southern California Rising Stars.
This is the first year that Super Lawyers has identified its most highly rated Rising Stars on top 50 and top 100 lists.
This marks the third year that Ramit Mizrahi was selected a Super Lawyers™ Southern California Rising Star. Only the top 2.5% of eligible attorneys in Southern California are selected as Super Lawyers Rising Stars, reflecting peer recognition of excellence in practice.
Ms. Mizrahi’s selection as one of the top 100 Rising Stars and top 50 Rising Stars women–already a highly select group of attorneys–reflects that she is highly respected among her peers and is one of the top-rated attorneys in Southern California.
Ms. Mizrahi remains committed to serving as a tenacious advocate for her clients while working to build collegiality and community in the legal profession.
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California’s undocumented workers make up nearly 9.4% of our workforce. They are the backbone of many California industries, including agriculture, construction, and hospitality. They are also among our most exploited workers, as some take advantage of their financial vulnerabilities, cultural and geographic isolation, and fear of deportation. As the powerful and poignant PBS documentary Rape in the Fields explored, immigrant women face shockingly high levels of sexual harassment, sexual assault, and rape at work. Undocumented workers are also subjected to rampant violations of wage and hour laws, including not being paid the minimum wage, not being paid overtime, and not being given proper meal and rest breaks. The median earnings of undocumented workers are about $20,000 per year, as compared to $50,000 per year for U.S.-born workers.
However, California laws and court cases make clear that undocumented workers deserve protections. Our workplace protection and wage and hour laws apply to everyone, regardless of their status. In addition, our laws have sought to address the reason that many undocuments employees are afraid to come forward: a fear that their employer will get them deported. Employers are expressly prohibited from reporting or threatening to report undocumented workers or their relatives to authorities in retaliation for their asserting their rights under these laws. Employers who retaliate in such a way can lose their business licenses; lawyers making such reports can be disbarred.
Two new developments are worth discussing.
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On January 30, 2015, Ramit Mizrahi will be co-teaching a program on the nuts and bolts of an employment practice, geared toward new lawyers and more seasoned practitioners who are new to employment law. The program is presented by State Bar of California’s Labor and Employment Law Section and co-sponsored by the California Young Lawyers Association.
Date and time: Friday, January 30, 2015, 9 a.m.-4:30 p.m.
Location: Loyola Law School, 919 Albany Street, Robinson Courtroom, Los Angeles, CA
Description: This program will give new employment law practitioners an introduction to the basics of an employment law practice. We will follow a hypothetical case from the plaintiff’s initial consultation with counsel through plaintiff’s and defendant’s investigations and pre-filing considerations, exhaustion issues, discovery, motion practice, ADR, and up to the start of trial. Experienced employment law practitioners representing both plaintiffs and defendants will offer their insights on common issues that frequently arise in employment law practice. A networking lunch is included.
For event information and to register, click here.
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Latest News
- Ramit Mizrahi has been recognized as one of the Top 100 Super Lawyers and Top 50 Women Super Lawyers in Southern California in 2023.
- Ms. Mizrahi is being recognized in the 2023 Edition of The Best Lawyers in America©, published by U.S. News & World Report and by Best Lawyers.
- Ms. Mizrahi has been selected as a Top Attorney by Pasadena Magazine for 2023.
- Ms. Mizrahi is serving as Chair of the Pasadena Bar Association Labor and Employment Section.