age discrimination California

Age Discrimination in the Workplace

Age Discrimination  age discrimination California

Several national reports show that there are actually more Baby Boomers in the workforce than ever before. These reports suggest that it is no longer the norm for workers to retire at age 65–unlike previous generations. With this trend, it is important to review the salient points of age discrimination for both employees and employers alike.


According to the EEOC, age discrimination involves treating an applicant or employee less favorably because of his or her age. The Age Discrimination in Employment Act (ADEA) forbids age discrimination against people who are age 40 or older. It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older. In general, the ADEA applies to private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government. Lastly, age discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.

Notable Cases

Several EEOC cases highlight the prevalence of age discrimination and the cost employers can pay for violations.  In October of last year, restaurant chain Ruby Tuesday agreed to pay $45,000 to settle an age bias lawsuit after it allegedly failed to hire a qualified applicant with over 20 years of relevant experience. Also, late last year, Montrose Memorial Hospital in Colorado paid $400,000 and furnished other relief to settle an age discrimination lawsuit brought by the EEOC. Montrose violated federal law when 29 employees, aged 40 and older, were fired or forced to resign, the EEOC said. The longtime employees, many with 10 to 20 or more years of work history at the hospital, were fired for supposed performance deficiencies for which younger employees were treated more leniently. In November, the EEOC sued the McCready Foundation, a nursing home operator out of Baltimore, MD.,  for failing to promote a 53-year-old woman.

Prohibited Actions

Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. ADEA protections also include advertisements and job notices, apprenticeship programs, pre-employment inquiries, and the provision of benefits.

Kingsley & Kingsley – Experienced California Employment Lawyers

It is important to remember that not all illegal age bias is blatant. Even something meant to be harmless, such as a question about future retirement plans or a comment about professional longevity, could be used against you. If you are a victim of age discrimination, the California employment lawyers at Kingsley & Kingsley can help. Should you have questions about discrimination or retaliation in the workplace, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

eeoc strategic plan

EEOC Still Seeking Input on FY 2018-2022 Strategic Plan

EEOC Strategic Plan  eeoc strategic plan

The U.S. Equal Employment Opportunity Commission (EEOC) is still seeking public comment on its draft Strategic Plan that covers Fiscal Years 2018 to 2022. The draft plan has not been approved by the Commission as comments are due by 11:59 pm ET on January 8, 2018.  The draft plan can be found at According to the EEOC, the Strategic Plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclusive workplaces through education and outreach, and organizational excel­lence. 

Every four years, Congress requires executive departments and agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The Strategic Plan for Fiscal Years 2018-2022 establishes a framework for achieving the EEOC’s mission to “Prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace,” so that the nation might soon realize the Commission’s vision of “Respectful and inclusive workplaces, with equal employment opportunity for all.”

EEOC Strategic Objectives

To accomplish its mission, the EEOC is committed to pursuing the following strategic objectives and outcome goals:

  1. Combat and prevent employment discrimination through the strategic application of EEOC’s law enforcement authorities. The corresponding outcome goals are: 1) Discriminatory employment practices are stopped and remedied, and victims of discrimination receive meaningful relief; and 2) Enforcement authorities are exercised fairly, efficiently, and based on the circumstances of each charge or complaint. 
  2. Prevent employment discrimination and promote inclusive workplaces through education and outreach. The corresponding outcome goals are: 1) Members of the public understand the employment discrimination laws and know their rights and responsibilities under these laws; and 2) Employers, unions, and employment agencies (covered entities) prevent discrimination, effectively address EEO issues, and support more inclusive workplaces.
  3. Organizational Excellence. The corresponding outcome goals are: 1) A culture of excellence, respect and accountability; and 2) Resources align with priorities to strengthen outreach, education, enforcement and service to the public. The plan also identifies strategies for achieving each outcome goal and identifies 12 performance measures (with yearly targets) to track the EEOC’s progress as it approaches FY 2022.

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sexual orientation discrimination california

Supreme Court Refuses to Hear Sexual Orientation Discrimination Case

Sexual Orientation Discrimination sexual orientation discrimination california

On December 12, 2017, the Supreme Court refused to hear a case challenging whether Title VII protects employees from sexual orientation discrimination. In Evans v. Georgia Regional Hospital, Case No. 17-370 (2017), the high court declined to hear Ms. Evans’ appeal, essentially closing the door on her claim and leaving intact a prior appellate court ruling that prevents employees in the Eleventh Circuit from pursuing a claim of sexual orientation discrimination against an employer. The Supreme Court provided no explanation for its decision.


From 2012 to 2013, Jameka Evans worked as a security officer at Georgia Regional Hospital at Savannah (the “Hospital”). Evans, who describes herself as a gay female, presented herself at work in  stereotypically “male” ways—for example, she wore a male uniform, had a short haircut, and wore male shoes. During her time at the Hospital, her supervisors “harassed her because of her perceived homosexuality, and she was otherwise punished because [of her] status as a gay female.” After filing complaints to Human Resources with no changes in working conditions, Evans eventually left her job.

After exhausting her remedies with the Equal Employment Opportunity Commission (EEOC), Evans filed a pro se complaint against the Hospital, Moss, Clark, and Powers in the United States District Court for the Southern District of Georgia. In her complaint, Evans specifically alleged that she was subjected to workplace discrimination because her “status as a gay female did not conform to gender stereotypes associated with women.”

Prior to service of the complaint, Evans’ case was referred to a magistrate judge. The magistrate recommended that the complaint be dismissed with prejudice for failure to state a claim upon which relief could be granted. In the magistrate’s view, Evans’ claim of discrimination based on her sexual orientation failed because Title VII “was not intended to cover discrimination against homosexuals.” The district court adopted the magistrate judge’s report and recommendation without addressing any of Evans’ objections. The district court then dismissed Evans’ case with prejudice.

Evans appealed, and the EEOC filed a supportive amicus brief, maintaining that sexual orientation discrimination “fall[s] squarely within Title VII’s prohibition against discrimination based on sex.”  The Eleventh Circuit Court of Appeals previously dismissed her claim holding that Title VII does not prohibit discrimination based on sexual orientation. Evans appealed to the U.S. Supreme Court. 

Federal Appellate Courts

Federal courts around the country are divided on whether sexual orientation is protected by Title VII. The law does not specifically reference sexual orientation. While some courts, including federal district courts in Pennsylvania have held that discrimination on the basis of sexual orientation is prohibited as a form of “sex” discrimination, other courts ave refused to recognize such a claim holding that it is up to Congress to change the law. 


Court of Appeals – PAGA Plaintiffs Do Not Have to Assert Injury or Employer Knowledge in PayStub Violations

Two Key Points in Court of Appeal’s Decision In Lopez v. Friant & Associates, LLC PAGA paystub violations California lawyers

In a recent decision handed down by the First District Court of Appeal, civil penalties under the Private Attorneys General Act of 2004 (“PAGA”) as set forth in the Labor Code, can be awarded for incomplete or inaccurate wage statements even if the employee was not injured by the omission or inaccuracy and even if the omission or inaccuracy was not the result of knowing or intentional conduct by the employer. However, the trial court has discretion under PAGA to decline to award PAGA penalties or reduce the amount of those penalties based on evidence that the omission or inaccuracy was inadvertent.


In 2015, Eduardo Lopez filed a single-count complaint under the California Private Attorneys General Act (PAGA) in California state court asserting that his employer, Friant & Associates, LLC failed to include the last four digits of its employees’ Social Security numbers or employee identification numbers on itemized wage statements, in violation of California Labor Code Section 226(a)(7).

Friant moved for summary judgment, arguing that the plaintiff failed to show that he suffered any injury resulting from a knowing and intentional violation of Section 226, as required by Section 226(e). The trial court granted summary judgment, concluding the employee must show more than a mere violation of Labor Code §226 and he also must demonstrate that he was injured as a result of a “knowing and intentional” violation.  Because the employee offered no evidence to contradict the statement of the employer that it was not aware the last four digits of employees’ Social Security numbers were not included on employees’ pay stubs, the court ruled in favor of the employer.

However, the appellate panel reversed, concluding that because a PAGA representative action is not an action for statutory damages, the employee did not have to demonstrate injury as a result of a knowing and intentional violation of Labor Code §226 to obtain the civil penalties under PAGA.  However, PAGA does allow the trial judge to decline to award PAGA penalties or reduce the amount of a PAGA award, based on the evidence that the error or omission in the wage statement was inadvertent.

“Because section 226(e)(1) sets forth the elements of a private cause of action for damages and statutory penalties, its requirement that a plaintiff demonstrate ‘injury’ resulting from a ‘knowing and intentional’ violation of section 226(a) is not applicable to a PAGA claim for recovery of civil penalties,” the court wrote. The panel further explained that its interpretation was bolstered by “the fact PAGA expressly recognizes a claim for violation of section 226(a), but does not mention 226(e),” the court said. “Thus, by its plain language, PAGA allows a claim for violation of section 226(a) without any reference to subdivision (e).”


California rolled out a unique approach to enforcing the State’s Labor Code when it enacted the Private Attorney General Act of 2004 (PAGA) codified in California Labor Code § 2698, et seq.  PAGA allows a private citizen to pursue civil penalties on behalf of the State of California Labor and Workforce Development Agency (LWDA) provided the formal notice and waiting procedures of the law are followed.

More specifically, PAGA allows current and former employees to file lawsuits to recover civil penalties that would otherwise only be recoverable by the government.  It is used for wage-and-hour and safety violations, and the lawsuits are filed on behalf of the named employee and other “aggrieved” current and former employees.

While similar to a “class-action lawsuit”, a PAGA claim is considered a “representative lawsuit,” and it can be pursued without meeting all the requirements of class certification.  That means it is easier for the employee’s attorney to pursue, but still has the consequences of aggregating multiple employees.

The concept behind the law is that the state’s labor agency does not have the resources to handle the penalty claims.  The statute authorizes private attorneys to step into the state’s shoes to pursue those cases and entitles them to recover reasonable attorney’s fees if the employee prevails.

Since its enactment, PAGA has been the source of much confusion and the legislature continues to review bills to modify PAGA. None of these bills deal with the differing interpretations about whether and how PAGA penalties apply to certain types of violations—particularly claims brought under section 226(a).

California Employment Lawyers

While questions remain about PAGA, and amendments continue to be filed, the there remains numerous benefits as a result of its passing more than a decade ago. Our firm continues to prosecute these claims as the best way to create change in corporate America. To further discuss PAGA, or a potential claim on your behalf, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)


Return to Work Policy Costs American Airlines $9.8M

American Airlines and Envoy Air Settle EEOC Disability Suit about Return to Work Policyamerican airlines eeoc return to work policy

American Airlines’ and Enoy Air’s return to work policy has resulted in a $9.8 million settlement with the Equal Employment Opportunity Commission (EEOC). According to the agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee, the airline’s policy violated the Americans with Disabilities Act (ADA) because it meant that employees were not allowed to return to work until they had no disability-related restrictions on their job duties. In short, the EEOC challenged the airline’s policy of requiring workers to be at “100 percent” in order to return to work. 

Allegations of Disability Discrimination

Employees of American Airlines and its largest regional affiliate, Envoy Air filed charges of discrimination with the EEOC alleging violations of the ADA. The employees filing complaints had disabilities such as back and knee injuries, cancer, lupus and asthma. The complaints suggested the employer refused to provide accommodations such as intermittent leave or a stool behind the ticket counter for a worker with a standing restriction, according to the EEOC.  The workers ultimately alleged that the airlines had a “100 percent” return to work policy that required employees to be able to work without any restrictions.

After investigating, the EEOC filed suit asserting that since at least Jan. 1, 2009, American Airlines engaged in a practice of violating the statute by refusing to accommodate employees with disabilities, terminating employees with disabilities and failing to rehire employees. The policy required that employees who are no longer able to do their job without reasonable accommodation find other jobs, apply for other jobs or compete for other American Airlines jobs. The policy did not require consideration of job reassignment as a reasonable accommodation.  

According to the EEOC’s complaint, American 1) did not provide intermittent leave as an accommodation, 2) refused to provide a stool behind the ticket counter to accommodate an employee with a standing restriction, 3) terminated several of the charging parties or placed them on unpaid leave, and 4) told other disabled employees they could not return to work until they had no restrictions related to their injuries and/or disabilities.

American Enters a Consent Decree

American Airlines denied all of the allegations and maintained that they provide equal employment opportunities for all workers. Even with this stance, American entered a consent decree to settle the charges. The consent decree contains the following provisions:

  1.  The EEOC will hold an unsecured claim in American Airlines’ Fourth Amended Joint Chapter 11 Plan in the amount of $9.8 million. The ultimate dollar value of the settlement will depend upon the trading price of the airline’s stock, the parties acknowledged, with the decree fully enforceable no matter the trading price;
  2. American took responsibility for administration costs up to $150,000;
  3. American and Envoy will conduct additional ADA training for all employees, with extra time allotted for human resources workers and ADA coordinators, and a newly designated position will have responsibility for overseeing American’s compliance with the statute and the consent decree;
  4. American and Envoy will refrain from taking part in any employment practices that discriminate or retaliate on the basis of disability and will engage in the interactive process with employees who request a reasonable accommodation;
  5. The airlines will end the challenged return to work policy accommodation and remove references to the litigation from the charging parties’ personnel files; and 
  6. American will provide equitable relief to the complainants.

EEOC Deputy General Counsel James L. Lee said, “We are pleased the parties were able to resolve this important case without resorting to prolonged and expensive litigation, and we are proud of the Commission’s long record of protecting people with disabilities from workplace discrimination.”

Click here to read the entire consent decree filed on November 3, 2017 in Equal Employment Opportunity Commission v. American Airlines, Inc.

California Employment Lawyers

Given the outcome of this investigation, employers should take heed of the EEOC’s position regarding 100% return to work policies. Subsequently, employers should be extremely cautious about requiring employees to return to work without restrictions when returning from medical leaves of absence. Should you have questions about the ADA, or employees having the ability to return to work with or without restrictions, don’t hesitate to contact the experienced California employment lawyers at Kingsley & Kingsley. To discuss these laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or contact Kingsley & Kingsley via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)


California’s Latest Ban the Box Law

ban the boxBan the Box

On October 14, 2017, Governor Jerry Brown signed AB 1008 into law, enacting a broad “Ban the Box” law that takes effect on January 1, 2018. The new law prohibits most California public and private employers from asking an applicant about criminal conviction history until after a conditional offer of employment has been made. Therefore, within less than 2 months, California employers will have to modify job applications and ensure criminal background checks are not conducted prior to an employer making a conditional offer of employment.

Background on Ban the Box Legislation
The passing of AB 1008 follows a recent history of related California legislation. In 2013, California enacted Labor Code section 432.9, which prohibited public employers from inquiring about criminal conviction history until the employer has determined that the applicant met the minimum qualifications for the job. Changes in local laws followed, as the cities of Los Angeles and San Francisco enacted their own “ban-the-box” ordinances, applicable to private employers doing business in those cities. Then, in June 2017, the California Fair Employment and Housing Council promulgated new regulations that limit an employer’s ability to consider the criminal history of a job applicant or employee when making employment decisions.

Who is Impacted by AB 1008?
AB 1008 amends the California Fair Employment and Housing Act (FEHA), which covers all California employers with five or more employees. Only the following positions are exempted: (1) positions for which a government agency is required by law to conduct a conviction history background check; (2) positions with criminal justice agencies; (3) Farm Labor Contractors (as defined by the Labor Code); and (4) positions for which a state, federal, or local law mandates that an employer conduct a criminal history background check for employment purposes, or restricts employment based on criminal history.

When does it go into effect?
AB 1008 goes into effect on January 1, 2018.

What constitutes prohibited actions?
The following conduct is now prohibited before an employer makes a conditional offer of employment:

  • Including in any application (whether written or oral) any question that seeks the disclosure of an applicant’s conviction history;
  • Considering an applicant’s conviction history;
  • Considering, distributing, or disseminating information about any of the following while conducting a conviction history background check in connection with any application for employment:
    • arrest not followed by conviction (except as provided in Labor Code § 432.7(a)(1) and (f))
    • referral to or participation in a pretrial or post-trial diversion program; and
    • convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

What’s allowable following a conditional offer of employment?
After extending a conditional offer of employment, the employer may conduct a background check and obtain a record of the applicant’s criminal history. If the criminal record reveals information that the employer feels necessary to reject the applicant solely or in part because of the applicant’s conviction history, the employer must evaluate if the conviction history would have a “direct” and “adverse” relationship with the specific duties of the job. As part of the evaluation, the employer should consider the nature and gravity of the offense or conduct, the time that has passed since the conduct and completion of the sentence, and the nature of the job held or sought.

If the employer makes a preliminary determination that the offense is worthy of disqualification, the employer is required to notify the applicant in writing and include numerous required elements such as the disqualifying conviction(s), a copy of the conviction history report, and an explanation of the applicant’s right to respond. After the notification is provided, the applicant has five days to respond.

All California employers should review recruitment policies, procedures and forms to ensure they adhere to the latest “Ban the Box” law, especially the revised prohibitions and processes required for applicant notification and disqualification. Employers should also ensure the proper classification of jobs and the determination of those jobs that may be exempt from the provisions within AB 1008. 

Should you have questions about the Ban the Box law, or any of California’s labor laws, don’t hesitate to to contact leading employment lawyers at Kingsley & Kingsley prior to AB 1008’s effective date of January 1, 2018. Feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)