In the Mentor Blog today, Lynn Jokela writes about mandatory board retirement age policies at S&P 500 companies. Are such policies illegal in California?
California's Unruh Civil Rights Act which provides:
[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
Civ. Code § 51. The statutory listing of categories protected from discrimination is long, but it is not exclusive. Courts have held that the Act is intended to prohibit all arbitrary discrimination by business establishments, regardless of whether the basis for that discrimination is listed in the statute. Javorsky v. Western Athletic Clubs, Inc., 242 Cal. App. 4th 1386, 1394 (2015). Thus, discrimination by age may in some circumstances violate the Act. See, e.g, Candelore v. Tinder, Inc., 19 Cal. App. 5th 1138 (2018) (finding plaintiff had sufficiently alleged a claim for age discrimination).
The Unruh Civil Rights Act is not merely precatory. Section 52(a) imposes liability on "[w]hoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51". Liability may include actual damages, possible treble damages and attorney's fees.