(a) Employers. Discrimination on the basis of age may be established by showing that a job applicant's or employee's age of 40 or older was considered in the denial of employment or an employment benefit. There is a presumption of discrimination whenever a facially neutral practice has an adverse impact on an applicant(s) or employee(s) age 40 or older, unless the practice is job-related and consistent with business necessity as defined in section 11010(b). In the context of layoffs or salary reduction efforts that have an adverse impact on an employee(s) age 40 or older, an employer's preference to retain a lower paid worker(s), alone, is insufficient to negate the presumption. The practice may still be impermissible, even where it is job-related and consistent with business necessity, where it is shown that an alternative practice could accomplish the business purpose equally well with a lesser discriminatory impact.

(b) Employment Agencies, Labor Organizations, and Apprenticeship Training Programs in Which the State Participates. Discrimination on the basis of age may be established against employment agencies, labor organizations, and apprenticeship training programs in which the state participates upon a showing that they have engaged in recruitment, screening, advertising, training, job referral, placement or similar activities that discriminate against an individual(s) age 40 or older.