2570 . Age Discrimination - Disparate T reatment - Essential
Factual Elements
[ Name of plaintiff ] claims that [ name of defendant ] wrongfully
discriminated against [him/her/ nonbinary pr onoun ] because of [his/her/
nonbinary pr onoun ] age. T o establish this claim, [ name of plaintiff ] must
prove all of the following:
1. That [ name of defendant ] was [an employer/[ other covered entity ]];
2. That [ name of plaintiff ] [was an employee of [ name of defendant ]/
applied to [ name of defendant ] for a job/[ describe other covered
relationship to defendant ]];
3. [That [ name of defendant ] [discharged/refused to hire/[ other
adverse employment action ]] [ name of plaintiff ];]
3. [That [ name of defendant ] subjected [ name of plaintiff ] to an
adverse employment action;]
3. [That [ name of plaintiff ] was constructively discharged;]
4. That [ name of plaintiff ] was age 40 or older at the time of the
[discharge/[ other adverse employment action ]];
5. That [ name of plaintiff ]’s age was a substantial motivating reason
for [ name of defendant ]’s [decision to [discharge/refuse to hire/
[ other adverse employment action ]] [ name of plaintiff ]/conduct];
6. That [ name of plaintiff ] was harmed; and
7. That [ name of defendant ]’s conduct was a substantial factor in
causing [ name of plaintiff ]’s harm.
New June 201 1; Revised June 2012, June 2013, May 2020
Directions for Use
Read the first option for element 3 if there is no dispute as to whether the
employer ’ s acts constituted an adverse employment action. Read the second option
and also give CACI No. 2509, “Adverse Employment Action” Explained , if whether
there was an adverse employment action is a question of fact for the jury . If
constructive discharge is alleged, give the third option for element 3 and also give
CACI No. 2510, “Constructive Dischar ge” Explained. Select “conduct” in element
5 if the either the second or third option is included for element 3.
Note that there are two causation elements. There must be a causal link between the
discriminatory animus based on age and the adverse action (see element 5), and
there must be a causal link between the adverse action and the damage (see element
7). (See Mamou v . T r endwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713 [81
Cal.Rptr .3d 406].)
Element 5 requires that age discrimination be a substantial motivating reason for the
adverse action. (See Harris v . City of Santa Monica (2013) 56 Cal.4th 203, 232
[152 Cal.Rptr .3d 392, 294 P .3d 49]; see also CACI No. 2507, “Substantial
Motivating Reason” Explained .)
Under the McDonnell Douglas ( McDonnell Douglas Corp. v . Green (1973) 41 1 U.S.
792 [93 S.Ct. 1817, 36 L.Ed.2d 668]) process for allocating burdens of proof and
producing evidence, which is used in California for disparate-treatment cases under
FEHA, the employee must first present a prima facie case of discrimination. The
burden then shifts to the employer to produce evidence of a nondiscriminatory
reason for the adverse action. At that point, the burden shifts back to the employee
to show that the employer ’ s stated reason was in fact a pretext for a discriminatory
Whether or not the employee has met the employee’ s prima facie burden, and
whether or not the employer has rebutted the employee’ s prima facie showing, are
questions of law for the trial court, not questions of fact for the jury . (See Caldwell
v . Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 [48 Cal.Rptr .2d
448].) In other words, by the time that the case is submitted to the jury , the plaintif f
has already established a prima facie case, and the employer has already prof fered a
legitimate, nondiscriminatory reason for the adverse employment decision. The
McDonnell Douglas shifting burden drops from the case. The jury is left to decide
which evidence it finds more convincing, that of the employer ’ s discriminatory
intent or that of the employer ’ s age-neutral reasons for the employment decision.
(See Muzquiz v . City of Emeryville (2000) 79 Cal.App.4th 1106, 1 118, fn. 5 [94
Cal.Rptr .2d 579]).
Under FEHA, age-discrimination cases require the employee to show that the
employee’ s job performance was satisfactory at the time of the adverse employment
action as a part of the employee’ s prima facie case (see Sandell v . T aylor-Listug,
Inc. (2010) 188 Cal.App.4th 297, 321 [1 15 Cal.Rptr .3d 453]), even though it is the
employer ’ s burden to produce evidence of a nondiscriminatory reason for the action.
Poor job performance is the most common nondiscriminatory reason that an
employer advances for the action. Even though satisfactory job performance may be
an element of the employee’ s prima facie case, it is not an element that the
employee must prove to the trier of fact. Under element 5 and CACI No. 2507, the
burden remains with the employee to ultimately prove that age discrimination was a
substantial motivating reason for the action. (See Muzquiz , supra , 79 Cal.App.4th at
See also the Sources and Authority to CACI No. 2500, Disparate
T reatment - Essential Factual Elements .
F AIR EMPLOYMENT AND HOUSING ACT CACI No. 2570
Sources and Authority
• Age Discrimination Prohibited Under Fair Employment and Housing Act.
Government Code section 12940(a).
• “Age” Defined. Government Code section 12926(b).
• Disparate T reatment; Layoffs Based on Salary . Government Code section 12941.
• “In order to make out a prima facie case of age discrimination under FEHA, a
plaintif f must present evidence that the plaintif f (1) is over the age of 40; (2)
suf fered an adverse employment action; (3) was performing satisfactorily at the
time of the adverse action; and (4) suf fered the adverse action under
circumstances that give rise to an inference of unlawful discrimination, i.e.,
evidence that the plaintif f was replaced by someone significantly younger than
the plaintif f.” ( Sandell , supra , 188 Cal.App.4th at p. 321.)
• “In other words, ‘[b]y the time that the case is submitted to the jury , . . . the
plaintif f has already established his or her prima facie case, and the employer
has already prof fered a legitimate, nondiscriminatory reason for the adverse
employment decision, leaving only the issue of the employer ’ s discriminatory
intent for resolution by the trier of fact. Otherwise, the case would have been
disposed of as a matter of law for the trial court. That is to say , if the plaintif f
cannot make out a prima facie case, the employer wins as a matter of law . If the
employer cannot articulate a nondiscriminatory reason for the adverse
employment decision, the plaintif f wins as a matter of law . In those instances, no
fact-finding is required, and the case will never reach a jury . [¶] In short, if and
when the case is submitted to the jury , the construct of the shifting burden
“drops from the case,” and the jury is left to decide which evidence it finds more
convincing, that of the employer ’ s discriminatory intent, or that of the
employer ’ s race or age-neutral reasons for the employment decision.’ ” ( Muzquiz ,
supra , 79 Cal.App.4th at p. 1 1 18, fn. 5.)
• “Because the only issue properly before the trier of fact was whether the
[defendant]’ s adverse employment decision was motivated by discrimination on
the basis of age, the shifting burdens of proof regarding appellant’ s prima facie
case and the issue of legitimate nondiscriminatory grounds were actually
irrelevant.” ( Muzquiz , supra , 79 Cal.App.4th at p. 1 1 19.)
• “An employee alleging age discrimination must ultimately prove that the adverse
employment action taken was based on his or her age. Since direct evidence of
such motivation is seldom available, the courts use a system of shifting burdens
as an aid to the presentation and resolution of age discrimination cases. That
system necessarily establishes the basic framework for reviewing motions for
summary judgment in such cases.” ( Hersant v . Department of Social Services
(1997) 57 Cal.App.4th 997, 1002 [67 Cal.Rptr .2d 483], internal citations
• “Requiring the plaintif f to show that discrimination was a substantial motivating
factor , rather than simply a motivating factor , more ef fectively ensures that
CACI No. 2570 F AIR EMPLOYMENT AND HOUSING ACT
liability will not be imposed based on evidence of mere thoughts or passing
statements unrelated to the disputed employment decision. At the same
time, . . . proof that discrimination was a substantial factor in an employment
decision triggers the deterrent purpose of the FEHA and thus exposes the
employer to liability , even if other factors would have led the employer to make
the same decision at the time.” ( Harris , supra , 56 Cal.4th at p. 232, original
• “W e do not suggest that discrimination must be alone suf f icient to bring about an
employment decision in order to constitute a substantial motivating factor . But it
is important to recognize that discrimination can be serious, consequential, and
even by itself determinative of an employment decision without also being a
“but for” cause.” ( Harris , supra , 56 Cal.4th at p. 229.)
• “While we agree that a plaintif f must demonstrate some basic level of
competence at his or her job in order to meet the requirements of a prima facie
showing, the burden-shifting framework established in McDonnell Douglas
compels the conclusion that any measurement of such competency should, to the
extent possible, be based on objective, rather than subjective, criteria. A
plaintif f’ s burden in making a prima facie case of discrimination is not intended
to be ‘onerous.’ Rather , the prima facie burden exists in order to weed out
patently unmeritorious claims.” ( Sandell , supra , 188 Cal.App.4th at p. 322,
internal citations omitted.)
• “A discharge is not ‘on the ground of age’ within the meaning of this prohibition
unless age is a ‘motivating factor ’ in the decision. Thus, ‘ “an employer would
be entitled to judgment as a matter of law if the record conclusively revealed
some other , nondiscriminatory reason for the employer ’ s decision.” ’ ‘[A]n
employee claiming discrimination must of fer substantial evidence that the
employer ’ s stated nondiscriminatory reason for the adverse action was untrue or
pretextual, or evidence the employer acted with a discriminatory animus, or a
combination of the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination.’ ” ( W est v . Bechtel Corp. (2002)
96 Cal.App.4th 966, 978 [1 17 Cal.Rptr .2d 647].)
• “[D]ownsizing alone is not necessarily a suf ficient explanation, under the FEHA,
for the consequent dismissal of an age-protected worker . An employer ’ s freedom
to consolidate or reduce its work force, and to eliminate positions in the process,
does not mean it may ‘use the occasion as a convenient opportunity to get rid of
its [older] workers.’ ” ( Guz v . Bechtel National, Inc. (2000) 24 Cal.4th 317, 358
[100 Cal.Rptr .2d 352, 8 P .3d 1089].)
Secondary Sources
8 W itkin, Summary of California Law (11th ed. 2017) Constitutional Law ,
Chin et al., California Practice Guide: Employment Litigation, Ch. 8-B, California
Fair Employment and Housing Act , ¶¶ 8:740, 8:800 et seq. (The Rutter Group)
2 W ilcox, California Employment Law , Ch. 41, Substantive Requirements Under
F AIR EMPLOYMENT AND HOUSING ACT CACI No. 2570
Equal Employment Opportunity Laws , § 41.31 (Matthew Bender)
1 1 California Forms of Pleading and Practice, Ch. 1 15, Civil Rights: Employment
Discrimination , § 1 15.22 (Matthew Bender)
10 California Points and Authorities, Ch. 100, Employer and Employee: W rongful
T ermination and Discipline , § 100.43 (Matthew Bender)
2571-2579. Reserved for Future Use
CACI No. 2570 F AIR EMPLOYMENT AND HOUSING ACT
Page last reviewed May 2024
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