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Mahler v. Judicial Council of Cal. (CA1/1 A158696 7/28/21) FEHA Age Discrimination/Temporary Assigned Judges Program 

Plaintiffs, retired superior court judges who have participated in the Temporary Assigned Judges Program (TAJP), challenge recent changes to the program made by the Chief Justice.  These changes include limits on the duration of service in the program but provide for some exceptions.  Plaintiffs claim these changes discriminate against “older” retired judges and have filed the instant lawsuit, alleging disparate impact age discrimination under the Fair Employment and Housing Act (FEHA).  The trial court sustained defendants’ demurrer without leave to amend on the ground legislative immunity bars the suit.

Legislative immunity does, indeed, shield the Chief Justice and the Judicial Council from suit, regardless of the nature of the relief sought, to the extent plaintiffs’ discrimination claim is based on the Chief Justice’s promulgation of changes to the TAJP.  Legislative immunity does not, however, foreclose suit to the extent plaintiffs’ claim is based on defendants’ enforcement of the challenged provisions of the TAJP through individual judicial assignments.  Rather, judicial immunity applies to the Chief Justice’s assignment of individual judges in accordance with the new TAJP provisions, and while judicial immunity forecloses monetary relief, it does not foreclose prospective declaratory relief.

Defendants also demurred on the ground plaintiffs’ allegations fail to state a viable disparate impact age discrimination claim.  Although the trial court did not consider the sufficiency of the complaint, defendants press this as an alternative ground to affirm, and we therefore address the issue, given our conclusion that legislative immunity does not wholly bar plaintiffs’ suit.  We agree that plaintiffs’ allegations are, at present, insufficient.

We do not agree, however, that plaintiffs must be denied leave to amend.  In so concluding, we disagree with defendants that a disparate impact age discrimination claim cannot, as matter of law, be based on disparate impact on an older subgroup within the class of persons protected under the FEHA, namely employees forty years of age and older.  No California court has squarely addressed this issue, and while several federal circuit courts have held “sub-class” disparate impact age discrimination claims are not viable under the Age Discrimination in Employment Act (ADEA), the majority view is now to the contrary.  We find the reasoning of these recent cases more persuasive than that of the older cases and conclude it is in keeping with our Legislature’s stated intent that the FEHA age discrimination provisions be liberally construed to achieve its salutary purposes.

We therefore reverse the dismissal order and remand to allow plaintiffs an opportunity to amend.  In doing so, we are expressing no opinion as to whether further amendment will sufficiently state a disparate impact age discrimination claim or as to the merits of plaintiffs’ claim.