Thanks. The military association we have in the state is the state militia and not federal status. Our retirement is based on GC 20282 which miscellaneous membership with CalPERS. All of us have over 5 years state service and are eligible for a small pension.
A: Yes, the state militia -- however, to the extent that Congress makes law where there is an intent to "occupy the field" or where it expressly states an intention to abrogate State sovereignty, federal law can be applied against the states. Re age discrimination, federal law expressly includes "a State." And, while individuals cannot sue the state of California for age discrimination under federal law (see Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)), the EEOC can sue, if the federal government believes that California has overstepped its authority.
Regarding GC 12920, 12926 and GC12926.1 (Discrimination), the only reference to the legislature making age rules is effective for the employ of persons. I take "employ to mean "hire" not the making of law for those already employed.
A: The section that actually prohibits age discrimination is Govt. Code 12940(a). However, "bona fide occupational qualifications" permit an employer to discriminate -- and where military service is concerned, age can be a bona fide qualification.
However, there is a counterargument here. The state militia, while certainly a legally authorized organization, with a valid constitutional purpose, is in many ways an anacronism, except as applies to the national guard. California does not really have its own military force capable of defending the state independent of the U.S. military. So, a claim by the state that age is a bona fide occupational qualification for service in the state militia is rather disingenuous. I seriously doubt that the militia will be called upon to do battle with General Santa Ana's army, or an indigenous tribal organization.
This is not to disparage your job or the idea that there should be a militia for the purposes of dealing with internal insurrection or a civil war with the US federal government. It's just that the reality of 2013 is quite different than the reality of 1890, and if the argument that the state's age limitation is not "bona fide" (honest in fact and customary standards of military law), then you have a valid case against the state -- where you might not have had the same argument 100-plus years ago.
I really wonder whether this mandatory retirement law is constitutionally valid as it applies to your job.
Hope this helps.