Under the California Fair Employment and Housing Act (FEHA), it is unlawful for an employer to harass an employee based on the employee’s age. And employers are strictly liable for workplace harassment if the harasser is a supervisor.
As a practical matter, that means HR must make sure no supervisor or manager makes any kind of comment that suggests any kind of age bias. Adopt a zero-tolerance policy. Discipline anyone caught poking fun at older employees or making ageist comments. Make sure supervisors know that kind of harassment could be a firing offense.
Recent case: Maria Fernandez, who is in her 50s, worked for the West Hills Hospital and Medical Center in the maintenance department, where she was responsible for ensuring that hospital rooms were clean and sanitary. Her supervisors and the nurses working on the floors she cleaned frequently complained that Fernandez didn’t do a very good job. The hospital placed Fernandez on various work-improvement plans, but it eventually fired her.
She fired back with an age harassment case under the FEHA. She claimed that over the course of several years, her direct supervisor made derogatory comments based on her age. For example, Fernandez said he told her she was too old to work, that he preferred to have younger people working in his department, that she was a “[expletive deleted] old lady,” she should leave her job to other people and that she was “too damn old to work here and should just get out of here.”
Fernandez testified that the comments were unwelcome and caused her anxiety and distress, and that she had a hard time dealing with her supervisors because of the environment.
That was enough for the California Court of Appeal to order a jury trial. (Fernandez v. West Hills Hospital and Medical Center, No. B198416, California Court of Appeal, 2nd Appellate Division, 2008)
Final note: Fired employees will fight back. You may not learn about the harassment until it’s too late.
- When discipline differs, be sure to document why
- Warn top brass: Avoid appearance of impropriety
- FMLA leave spikes before weekends, holidays? Investigate suspected abuse, fire if warranted
- You can't outsource your WARN Act notice obligations
- Poor performance terminations and COBRA: Can we deny the new COBRA subsidy?