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Employer's Corner For 04-99 By Sheldon Rosenfield, Esq. Sheldon@BizNetOnLine.com |
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Employer's Corner For 04-99 By Sheldon Rosenfield, Esq. Sheldon@BizNetOnLine.com |
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RIGHT OF THE EMPLOYEE TO SUE FOR AGE DISCRIMINATION, IN THE ABSENCE OF A WRITTEN CONTRACT OF EMPLOYMENT.
A new California Supreme Court Case (August 1997) Stevenson v. California Hospital has again redefined the law as it relates to employer liability for wrongful termination because of age discrimination.
In this case the employee, after returning from a medical leave of absence was discharged at age 60, having worked for the hospital for over 30 years, performing her job competently and receiving commendations and pay increases. She sued the hospital claiming her termination was based on age discrimination. The hospital argued (among other things) that in California, in the absence of a written contract the employment relationship is terminated by either party "at will", and in this case no written contract was made.
The Court however held that an exception to this rule applied where the reasons for the discharge were against a fundamental public policy (examples: employee discharged for refusing to perjurer himself; refusing to participate in an illegal scheme; whistle blowing).
The Court then cited the FEHA (Fair Employment and Housing Act) as establishing that "freedom from job discrimination on specific grounds including sex, and age IS A CIVIL RIGHT. " The Court declared this civil right was grounded in a fundamental public policy and permitted the plaintiff to proceed with her suit against the employer, for age discrimination, even though she had no written employment contract.
Note: The FEHA Act by its terms applies only to employers having 5 or more employees and only to employees over the age of 40.
Note: "Civil Right" is a right that can be enforced by a lawsuit. In this case the hospital argued that the employee was limited to only those redresses specified in the FEHA Act, which did not include a civil lawsuit. The Court however, ruled otherwise, holding that the FEHA was not an "exclusive remedy" which could bar the employee's civil suit.
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Specializing
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employers in wrongful termination, harassment and
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