Metropolitan News-Enterprise


Monday, January 28, 2002


Page 11


Lawmakers Move to Expand Age-Discrimination-in-Employment Law




SACRAMENTO (CAPITOL)—Legislators have moved to expand California’s age-discrimination laws by making it illegal for employers to provide benefits such as training programs to younger workers only.

Assemblywoman Gloria Negrete McLeod, D-San Bernardino County, has introduced a bill to overturn last year’s ruling by the Santa Ana division of the Fourth District Court of Appeal that current state law doesn’t prohibit age discrimination when it comes to terms and conditions of employment.

The case involves Dan Esberg, a Union Oil Company of California employee who sued after his supervisor allegedly told him the company wouldn’t pay for him to get a master’s degree in business administration because he was “too old to invest in.”

Workers who were younger than Esberg, then in his mid-50s, received the company’s assistance.

The denial of financial help came 14 years after Esberg went to work for Union Oil and three years after the company had paid $16,000 in tuition for his bachelor’s degree from the University of Redlands.

Esberg sued, claiming Union Oil had violated the age-discrimination portions of the California Fair Employment and Housing Act. He also sued for wrongful denial of benefits in violation of public policy and breach of oral contract.

The court immediately dismissed the age-discrimination claim, but allowed the other claims to go to trial. A jury awarded Esberg $35,000 in non-economic damages and $51,000 in economic damages.

But an Orange County Superior Court judge voided the $35,000 award, ruling that the case involved a contract dispute—not discrimination—and non-economic damages are not available under contract law.

Esberg appealed, but a three-judge panel of the Fourth District upheld the trial court’s decisions.

The section of the Fair Employment and Housing Act which prohibits employers from hiring, firing or demoting workers based on age is separate from the section which bans discrimination “in compensation or in terms, conditions, or privileges of employment,” the court noted.

By keeping the sections separate, the Legislature demonstrated its intent that age discrimination be defined more narrowly than discrimination based on ethnicity, sex or other factors, the court said.

The court also found that the federal Age Discrimination in Employment Act, which contains a specific prohibition against age discrimination in the terms, conditions and privileges of employment, does not apply because the state law is clearly written to not contain such a prohibition.

“It is not appropriate to follow federal decisions where the distinct language of [the state law] evidences a legislative intent different from that of Congress,” Justice Kathleen O’Leary wrote for the Fourth District panel.

“We may question the wisdom of the law, but we cannot rewrite it,” she wrote.

O’Leary, appointed to the appellate court by Gov. Gray Davis, said the language of the state laws in question is “inescapably plain” and unambiguous.

McLeod’s legislation is just as plain, stating, “It is the intent of the construe and clarify the meaning and effect of existing law and to reject the interpretation given to the law in Esberg v. Union Oil Company of California.”

McLeod’s legislation recently passed the Assembly Judiciary Committee on a 7-2 vote and cleared the Assembly Labor and Employment Committee on a 5-1 vote. Its next stop is the Assembly Appropriations Committee, which could vote to send it to the Assembly floor.

Along with seniors’ activists, business groups are watching the bill closely. In the Esberg case, the employer argued that it should be allowed to take age into account when making training decisions. Otherwise, business groups believe, employers would be legally forced to provide expensive training even to workers who are very close to retirement.

An analysis prepared by the Assembly Judiciary Committee’s staff questions the reasoning of employers who might oppose AB 1599.

“Given the frequency with which younger workers—especially the more highly trained—change jobs, compared to the relative stability of older workers, it may be more likely that employers actually earn a better return on their investment by training older workers,” the analysis says.

The bill is sponsored by Attorney General Bill Lockyer and has been endorsed by the Congress of California Seniors and the Older Women’s League.

In addition to affecting businesses, AB 1599 would ban age discrimination by labor unions in dealing with members, applicants, officers and employees.

McLeod’s bill would not be retroactive to help Esberg, but he might not need the help. The state Supreme Court has agreed to review his case.


Copyright 2002, Metropolitan News Company