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Terminated Employee May Still Claim Age Discrimination Even If Replaced by Older Worker

  • June 1, 2000

The California Court of Appeal for the First District has ruled that a terminated employee is not precluded from asserting a claim of age discrimination even if he or she is replaced by an older employee. In Bengal v. Canfield & Associate, Inc. (2000) 00 C.D.O.S. 1113), a seventeen-year employee was terminated for repeated unsatisfactory performance evaluations. She was replaced by an individual who was older than she. The employee contested the termination, claiming that the poor evaluations were a pretext for the employer's real reason, which was age discrimination in violation of the California Fair Employment and Housing Act. At trial, the jury ruled in favor of the employee on her age discrimination case. However, the judge threw out the jury's verdict, and ruled that, as a matter of law, a claim of age discrimination cannot survive when an employee is replaced by an older worker.

On appeal, the court reversed, reasoning that the older replacement did not necessarily bar a finding of age discrimination. The court stated it is possible for an employer to discriminate against a person on the basis of a protected personal characteristic even though the person is replaced by someone else with the same characteristic.

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