“Age Discrimination” in California – How to Bring a Lawsuit

Both federal law and California state law protect you from “age discrimination” in the workplace if you are 40 or older. If you are a victim of age discrimination, you can take legal action against the offending employer in pursuit of money damages and a court order to stop the discriminatory behavior.

Here are four key things to know:

1. Signs of age discrimination are being demoted, fired, or passed over for a promotion for no justifiable reason.
2. Paths for relief include filing a complaint with California’s Civil Rights Department or bringing a civil lawsuit.
3. If successful, you may be awarded back pay plus benefits and get reinstated to your job.
4. Your employer cannot retaliate against you for reporting age discrimination.

Here at Shouse Law Group, we have decades of combined experience winning substantial money damages for workers who were fired, passed over for promotions, or otherwise mistreated due to their age.

Below our California labor employment lawyers discuss the following topics about age discrimination against California workers:

• 1. Definition
• 2. Signs
• 3. Suing
• 4. Damages
• 5. Retaliation
• Additional resources

1. Definition

Age discrimination is taking an adverse employment action against a person 40 years old or older.¹ Similar to race and gender, being 40 or older is a protected characteristic.²

California’s Fair Employment and Housing Act (FEHA) prohibits age discrimination by employers with five or more employees. FEHA also prohibits age-based workplace harassment by employers of any size.³

Unions and labor organizations are also prohibited from excluding, expelling, or restricting membership to you based on age.⁴ In addition, age discrimination prohibitions apply to apprenticeship training programs and employment agencies.⁵

The purpose of age discrimination laws is to prevent employers from acting on their prejudices and age-based stereotypes about the qualifications, job performance, health, work habits, and productivity of older individuals.⁶

2. Signs

Age discrimination is established by showing that your being 40 or older was a reason your employer denied you a job, demoted you, fired you, or deprived you of a benefit or promotion you are entitled to.⁷

Employers usually do not come right out and tell you that you are being discriminated against because of your age. However, there are a number of signs of age discrimination:

• Firing employees who have been with the company longer,
• Firing higher-salary employees,⁸
• Making older workers take on certain duties,
• Forcing retirement for older employees,⁹
• Making jokes or comments about an employee’s age,¹⁰
• Giving older employees negative job performance reviews,
• Promoting a “young” corporate culture and recruiting only young employees,¹¹
• Singling older employees out for training,
• Depriving older employees of certain tech or software, and/or
• Instituting policies that disproportionately affect older workers (such as banning employees from having gray hair).

Note that it is not illegal for an employer to ask for your age or date of birth. However, it is unlawful to use an application or pre-employment inquiry to reject you because you are 40 years old or older.¹²

Age discrimination is against both California and federal law.

3. Suing

If you wish to hold your employer to account for discriminating against you for being 40 or older, you first have to file a complaint with California’s Civil Rights Department.¹⁴

(Alternatively, you can file a complaint with the federal Equal Employment Opportunity Commission (EEOC) since age discrimination is also prohibited by federal law. However, we find the CRD yields better results.)

The CRD process

In most age discrimination cases, you have three years to contact the CRD and file a pre-complaint inquiry. The complaint can be filed online, by phone, or using the form from the CRD website. The pre-complaint inquiry will initiate an intake interview with the CRD and help determine whether your complaint can be accepted for investigation.

An investigator will contact you within 60 days and go over the details of the inquiry. If the CRD representative determines your complaint cannot be accepted, the matter will be dismissed, and you have the immediate “right to sue” your employer in court. If the representative accepts your pre-complaint inquiry, a complaint will be prepared for your signature and delivered to your employer.

Answer and investigation

After your employer responds to the complaint, the CRD will review the answer. In many cases, the CRD will offer dispute resolution services, which provides a way for you and your employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the CRD will initiate an investigation.

An age discrimination investigation will determine whether there was a violation of California law. If the investigation finds there was a violation, the case will go to the CRD Legal Division. If there is no violation, the case will be closed. After the case is closed, you have the immediate right to take your case to court.

Mediation

The CRD Legal Division requires you to go through mediation. Mediation is a type of alternative dispute resolution where a neutral mediator helps you and your employer come together to find a mutually agreeable solution. A benefit of mediation is that it allows your employer and you to come up with your own way to settle the dispute, without leaving it all up to a judge to decide the outcome.

If you cannot settle the dispute through mediation, the CRD can file a lawsuit on your behalf against your employer. If the CRD does not pursue the claim, it will close the investigation, and you have the immediate right to file a lawsuit against your employer.

Burdens of proof

For you to win a CRD claim for age discrimination, California law requires showing that age was a “substantial motivating factor” in the improper employment action taken against you.

Note that federal law has a higher burden of proof than California law. Federal law requires age to be the determining factor – meaning the adverse employment action would not have occurred but for your age. The lower burden under state law makes claims in California more employee-friendly and is another reason why we suggest going through the CRD rather than the EEOC.¹³

Bypassing the CRD

From our experience representing age discrimination victims, it may be better to file a complaint with the CRD and obtain an immediate right-to-sue notice without waiting for the administrative process first. That way, we can start fighting for all the civil remedies available without any administrative delays.¹⁵

Once we file the complaint in court, it will be served upon your employer and anyone else named in the lawsuit. The defendants will respond to the complaint, and the case may proceed through litigation.

At any point before the end of a trial, we can negotiate a settlement with your employer and settle the case out of court. The vast majority of the cases we handle settle with a favorable resolution for our clients.

4. Damages

Typical damages in California age discrimination cases include:

• Back pay and front pay plus benefits
• Higher income from a promotion and raise
• Pension benefits
• Bonus payments
• Legal fees and court costs¹⁶
• Emotional distress

In our experience representing age discrimination victims, the most lucrative damages are emotional distress. For many people, the workplace is a second home, and co-workers are a second family. Being discriminated against at work because of your age – something you cannot even control – can have a massive toll on your mental health.

If you have been fired based on your age, the court can order your employer to rehire you (called “injunctive relief”) if you wish to return to work. In especially severe cases, the court may also award you punitive damages to punish the employer for its behavior towards you.

5. Retaliation

Under FEHA, California law prohibits employers from retaliating against you for:

• Opposing or reporting age discrimination against you or other employees,
• Filing an age discrimination claim, and/or
• assisting with CRD/EEOC investigations or government inquiries.¹⁷

Employer retaliation is any type of adverse employment action, such as

• demotions,
• increased scrutiny,
• exclusion from meetings,
• unwarranted negative performance reviews, and/or
• wrongful termination.

If you have been retaliated against for exercising your rights, we may be able to file a complaint with the CRD and file a lawsuit in pursuit of extensive money damages and possibly reinstatement to your old job.¹⁸

If you have further questions after reading this article, we invite you to contact us at Shouse Law Group.

Additional resources

For more information beyond California age discrimination laws, refer to the following:

• What do I need to know about … Age Discrimination – Brief overview by the U.S. Department of Labor.
• Age Discrimination – Overview of what constitutes age discrimination, provided by the Equality and Human Rights Commission.
• Employers can use phrases in your resume to unfairly discriminate based on age—how to protect yourself against it – Tips by CNBC.
  
• Older Workers Benefit Protection Act (OWBPA) – 1990 federal law that provides 40-year-old and older employees 21 days to consider signing a waiver of their rights in connection with an exit incentive or employment termination program and then gives them seven days to revoke their signature (29 U.S.C. § 626(f)). Learn more about severance agreements for workers 40 or over.
• Age Discrimination in Employment Act (ADEA) – 1967 federal law prohibiting age discrimination for workers 40 or older; it applies to business with 20 or more employees, and its “causation standard” standard is stricter than FEHA’s “motivating factor” standard (29 U.S.C. §§ 621-634).

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