Esberg

In this case, a 53-year-old employee, with the employer’s approval, pursued an undergraduate degree at company expense. Three years later, he sought employer-paid postgraduate education. When the company denied funding, plaintiff brought suit claiming unlawful age discrimination.

This case does not involve any cause of action related to wrongful termination. Instead, plaintiff raises two novel issues related to age discrimination in the furnishing of employee benefits. First, he contends that the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12900 et seq.) prohibits an employer from discriminating on the basis of age in the terms, conditions, or privileges of employment. Second, he contends that an employer’s denial of educational assistance to an employee over the age of 40 because of that employee’s age violates a fundamental policy against age discrimination in employment and is therefore a common law tort for which an employee may recover damages under our decisions in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [ 164 Cal.Rptr. 839 , 610 P.2d 1330 , 9 A.L.R.4th 314 ] (Tameny) and Rojo v. Kliger (1990) 52 Cal.3d 65 [ 276 Cal.Rptr. 130 ,…