Mahler v. Judicial Council of Cal., 67 Cal. App. 5th 82 (2021)

Plaintiffs are retired superior court judges who have participated in the Temporary Assigned Judges Program (TAJP). As a result of recent changes, there is a limit on the duration of service in the program, which plaintiffs claim has a disparate age impact on “older” retired judges. Defendants successfully demurred on various grounds, including that plaintiffs failed to state a viable disparate impact age discrimination claim. The Court of Appeal reversed dismissal of those claims and held that on remand, plaintiffs should be granted leave to amend their complaint. Among other things, plaintiffs failed to allege the total number of participants in the TAJP; the number of participants allegedly adversely impacted by the challenged changes to the program; the age group allegedly adversely impacted; “basic allegations” of statistical methods and comparison; or “even any anecdotal information of a significant age-based disparity.” The Court further held that a disparate impact age discrimination claim under the Fair Employment and Housing Act is not foreclosed solely because it is predicated on alleged discriminatory impact on a sub-group within the protected age class as was alleged here.