Recently, many Agricultural employers have been faced with a common problem.  These employers specifically want to know whether they can ask youthful-looking employees about their age and ask those employees to provide identification to prove that they are over eighteen. 

California's Fair Employment and Housing Act ("FEHA") and its Federal counterparts, Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act ("ADEA") and the Americans with Disabilities Act ("ADA"), all provide protections from discrimination for various protected classifications.   While age is one of the classifications protected under these statutes, it only applies when the employee alleging age discrimination is 40 years of age or older.  Cal. Gov. Code § 12941(a).  Employees who are discriminated against because they are under the age of 40 cannot, therefore, bring any discrimination claims on the basis of age. 

Because of the rule being structured this way, employers are allowed to ask an employee who looks young whether that employee is eighteen or not and whether they can provide proof of their age.  Even though such treatment is different from that given to other employees, youthful appearance is not a protected class under FEHA or the ADEA and employees who look young or provide the employer with reasons to believe that they are too young to work can be treated differently as a result. 

While employers may ask young employees whether they are minors and whether they can prove that they are not minors, they cannot do this in any manner that they desire.  First, employers must make sure that any questions that they ask regarding age focus on whether or not the employee is a minor, such as "Are you eighteen?" or "Are you a minor?"  Do not ask an applicant or employee simply how old they are as this could be construed as a way to discriminate against older employees who are protected by law.  In the same light, when asking for proof of age, employers should be sure to state to employees that such proof is required in order to determine if the employee is old enough to work.  This practice will help prevent any possible ID requirement from being construed as favoring younger employees over employees 40 and older. 

Additionally, certain demographics and populations of the workforce generally have a more youthful appearance than others.  This may create problems for employers who ask employees of one demographic about their age much more frequently than they ask others because, under both FEHA and Title VII, discrimination on the basis of race, color, heritage or national origin is prohibited.  Employers should make sure that any employee that looks young is questioned in regards to their age and not just employees of a certain population or group.  However, even when this is done, if a certain class is still asked much more often than another, because one class appears younger than others, it may open up lawsuits against the employer on the basis of Disparate Impact discrimination against that class.  While the employer in such a case can use the defense that the practice is job related and consistent with a business necessity, and the employer will probably be successful with such a defense, the employer will still have to face the costs and annoyance of dealing with a lawsuit. 

Counsel to Management

While there are some risks involved in asking employees if they are over eighteen and requiring them to show identification to prove that they are, employers are better off asking any employees that appear to be under the age of 25 whether they are minors and requiring them to provide identification.  Employers should also make sure that all questions asked about age are in regards to whether the employee is a minor, and employees should be aware that these questions are only being asked to determine if the employee is an adult.  Additionally, you should treat all similarly-aged employees the same in regards to these questions.  Finally, you should never ask general age-related questions like "How old are you?"  to employees, nor should you ask employees who appear older than twenty-five about their age or whether they can provide identification.  

Minors unlawfully working for an employer will subject the employer to both civil and criminal penalties, many of which they will not have defenses for.  Moreover, injuries can occur in Agricultural work, but these injuries are more likely to occur when minors are doing such work.  This fact has prompted vast State and Federal law that prevents minors from doing many tasks involved in Agriculture.  If a minor employee is injured doing one of these forbidden tasks while also working illegally without a work permit, it could subject the employer to further civil and criminal penalties.  Not only can such injuries to minors cause harm due to punishment by the legal system, but they may also leave employers open to campaigns in the media and boycotts of their products by various labor groups who will paint the injured minor as a victim  for their "cause." 

It is, therefore, preferable for employers to face any consequences that may arise from requesting that employees prove that they are eighteen than to have a minor working for the company illegally who is later injured or killed.  This will insure both that employees return home safely and that the employer can avoid all of the negative repercussions involved with such an incident.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with The Saqui Law Group at (831) 443-7100 in Salinas.