If you are 40 years old or older, it is illegal for your employer to discriminate against you based on your age. Age discrimination for individuals 40 and over is a violation of both California and federal employment discrimination laws.
Here are four key things to know:
- Signs of age discrimination are being demoted, fired, or passed over for a promotion for no justifiable reason.
- Paths for relief include filing a complaint with California’s Civil Rights Department or bringing a civil lawsuit.
- If successful, you may be awarded back pay plus benefits and get reinstated to your job.
- 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 frequently asked questions about lawsuits for age discrimination against California workers:
- 1. Is age discrimination against the law in California?
- 2. How do I know if I was discriminated against because of my age?
- 3. Should I file an age discrimination complaint with the EEOC?
- 4. Can I sue my employer for age discrimination in California?
- 5. What are my damages in an employment discrimination lawsuit in California?
- 6. Can my boss fire me for reporting age discrimination?
- 7. What is the Older Workers Benefit Protection Act?
- 8. What is the Age Discrimination in Employment Act?
- Additional resources
Employment discrimination based on age against anyone 40 or older is a violation of the California Fair Employment and Housing Act (FEHA).1
Age discrimination in California only applies to the protected class of individuals 40 years old or older. The definition of “age” under the FEHA includes,
“the chronological age of any individual who has reached his or her 40th birthday.”2
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 Age discrimination prohibitions also apply to apprenticeship training programs and employment agencies.5
There are also special protections for workers over 40 who enter severance agreements upon termination.
Purpose of age discrimination protections
Employers and others may have preconceived ideas and age-based stereotypes that make generalizations about the qualifications, job performance, health, work habits, and productivity of individuals over the age of 40.
The law prohibiting age discrimination in employment is to protect individuals 40 or over with opportunities based on their abilities.6
Age discrimination is established by showing that your being 40 or older was a consideration in you being denied a job or an employment benefit.7 Examples of such discrimination include:
- Failure to promote
- Reduction in salary
- Denied a work environment free of discrimination
- Denied equal pay in violation of The California Equal Pay Act
- Denied a promotion
- Denied reinstatement
- Forced to quit
- Forced to transfer
- Denied medical leave
Signs of discrimination
Employers may not come right out and tell you that you are being terminated or denied a promotion because of your age. There are a number of signs that you are being discriminated against because of your age, such as:
- Firing employees who have been with the company longer
- Firing higher-salary employees
- Making older workers take on certain duties
- Jokes or comments about an employee’s age
- Sudden changes in job performance reviews
- Promoting a “young” corporate culture
- Retaliating against an employee for reporting discrimination against older employees
- Forcing retirement for older employees
- Being singled out for training
- Having certain tech or software taken away
We elaborate on some of these signs of age discrimination below:
Higher Salaries for Older Employees
Older employees who have worked with a company for a long time may have a higher salary than younger employees. A company may claim the higher-paid employees are being “let go” as a way for the company to save money.
However, the use of salary as a basis for differentiating between employees can be age discrimination if it adversely impacts older workers as a group.8
In general, the FEHA prohibits retirement plans with a mandatory age of retirement.9 However, there are certain exceptions that allow for mandatory retirement. 10 This includes:
- Physicians age 70 or older who are employed by a professional medical corporation that provides for compulsory retirement.
- Employees 65 years old or older who were employed in a bona fide executive or high policymaking position for the prior two years, provided the employee is entitled to receive an immediate, qualifying, non-forfeitable annual retirement benefit from the employer.
Recruiting Young Workers
Employers are generally aware that it is against the law to refuse to consider you because you are 40 or older. However, some employers may screen and hire applicants through recruitment programs with high schools or universities as a way to avoid ever considering older workers.
Employers can participate in established recruitment programs at schools, colleges, and universities. Employers can also be involved in temporary hiring programs aimed at young workers. However, exclusive use of such screening programs may be considered age discrimination if these programs are used to evade age discrimination laws.11
Asking for Age in Job Applications
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
Jokes About Age
Employers and co-workers may make jokes about you because you are an older worker. You then may be treated as being too sensitive and told that “it’s just a joke.”
However, comments related to age can be an indication that employers do not take age discrimination claims seriously. This could also have the effect of discouraging older workers to report discrimination based on age.
Factors Unrelated to Age
Some working conditions, hiring practices, and company policies may be discriminatory to you as an older employee even if they are not based on age. Employment practices that have a disparate impact on older workers may be deemed discriminatory.
For example, a company may have a policy that employees cannot dye their hair bright pink because hair color is not a protected area for employment discrimination. (Starting in 2020, hairstyles are a protected area – Senate Bill 188 (2019).) For example, a company policy that says employees cannot have gray hair may be discriminatory. Older workers are more likely to have gray hair, and a company policy against gray hair may disproportionately affect older workers.
Age discrimination is a violation of California state law and federal law. The Equal Employment Opportunity Commission (EEOC) enforces federal age discrimination laws, including the Age Discrimination in Employment Act (ADEA). Age discrimination cases generally require exhausting administrative remedies before you can file a lawsuit against your employer.
It may be more beneficial to take your case to the California Civil Rights Department (CRD) or file your claim in the California courts. California state anti-discrimination laws generally provide broader protections than federal law and apply to more employers.
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.
The CRD process
You can file your complaint directly with the CRD. 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 a 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 a 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 the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to your employer, and can be dual-filed with the EEOC.
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 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.
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 could 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
California law requires showing that age was a “substantial motivating factor” in an improper employment action.
Note that federal law has a higher burden of proof, requiring age to be the determining factor – meaning the action would not have occurred but for age. This lower burden under state law makes claims in California more employee-friendly.
Statutes of limitation
Complaints must generally be filed with the CRD within three years of the alleged discriminatory act. The CRD may also impose shorter deadlines once you initiate the complaint process.
If you are also asserting rights under federal law, the CRD will automatically dual-file your complaint with the EEOC to preserve your federal claims. Federal law has similar deadlines, requiring claims to be filed with the EEOC within 180 or 300 days of an alleged violation.
Missing a deadline could jeopardize your ability to pursue legal action, so be sure to contact us right away.13
If you are discriminated against because you are 40 years old or older, you can bring an employment action against your employer for age discrimination. As indicated above, you generally have to file a complaint with the CRD or EEOC before you can file a lawsuit in civil court.14
You are first required to obtain a “right-to-sue” notice before your case can be taken to court. You can request an immediate right-to-sue notice, without having to go through a complete CRD or EEOC investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by CRD. Alternatively, you may also wait until the CRD dismisses your case or finds no violation before taking your case to court.
Bypassing the CRD and EEOC
According to the CRD, proceeding directly to court without an investigation by the CRD is only advisable if you have an attorney. As experienced age discrimination attorneys, we can obtain your right-to-sue notice and file your case in California Superior Court, in the county where the discrimination occurred, or another relevant county.15
The complaint will be served upon your employer and anyone else named in a California employment discrimination lawsuit. The defendants will respond to the complaint with a formal answer responding to the allegations, 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.
The damages available in an age discrimination lawsuit will depend on the type of discrimination involved. In general, the remedies available for employment discrimination would put you in the same position you would have been but for the violation. This may include
- money damages,
- punitive damages, and
- equitable remedies.
Age discrimination damages
Damages from employment discrimination may include losses from:
- Back pay and back wages
- Front pay
- Higher income from a promotion
- Higher income from a raise
- Pension benefits
- Back pay
- Bonus payments
- Pain and suffering
- 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.
We call upon expert witnesses in the medical field to attest to the strain that the age discrimination has caused you, and we demand your employer pay you the highest possible financial settlement to make it right.
When an employer intentionally discriminates against you based on your age, you may be eligible to receive liquidated damages. Liquidated damages act as a way to punish the behavior of the wrongdoer and can deter your employer or other employers from engaging in similar wrongful behavior in the future.
If you have been fired based on your age, the court can order your employer to rehire you. The court can also provide for other equitable remedies, like promoting you or requiring you to be given a raise. However, these options are not always preferred; in many cases, you may not want to return to the hostile workplace.
If you win your case against your employer, they may have to pay your legal fees and court costs.16
In California, you as a worker cannot be retaliated against for opposing workplace discrimination.17 The FEHA protects employees who are retaliated against for:
- Opposing workplace harassment
- Opposing age discrimination against other employees
- Reporting age discrimination
- Assisting with CRD investigations or government inquiries
- Filing a harassment or discrimination claim
An employer cannot take retaliatory action against you for citing discrimination or harassment violations or filing an age discrimination lawsuit. Firing you for filing an unpaid wage claim is considered “wrongful termination”.
Types of retaliation
When enforcing anti-retaliation laws, courts take a broad view of what constitutes an adverse employment action. In addition to termination, demotion or pay cuts, other negative treatment at work may qualify as retaliation after engaging in protected activity like reporting discrimination. Examples include:
- unwarranted negative performance reviews
- being denied a raise or promotion
- loss of responsibilities
- reassignment to less desirable positions
- exclusion from meetings and events
- increased scrutiny or micromanaging
Even if not a tangible or economic harm, actions that would dissuade a reasonable employee from asserting their rights are unlawful.
Suing for wrongful termination
If an employer retaliates against you for reporting FEHA violations, you may be able to file a complaint with the CRD or file a lawsuit against the employer for retaliation or wrongful termination.
We have an extensive background representing former employees fired for no reason other than for exercising their right to oppose workplace discrimination. By filing a wrongful termination lawsuit on your behalf, we may be able to win you extensive money damages and possibly reinstatement to your old job.18
The Older Workers Benefit Protection Act (OWBPA) is a 1990 federal law that provides additional protections for older employees regarding severance agreements.
If you are at least 40 years old, the OWBPA gives you 21 days to consider signing a waiver of your rights in connection with an exit incentive or employment termination program. Additionally, OWBPA gives you seven days to revoke your signature once you have signed the agreement.
This allows you time to review severance offers and consult with an attorney before knowingly and voluntarily signing away age discrimination claims against your employer.19
The Age Discrimination in Employment Act (ADEA) is the main federal law prohibiting age discrimination. It applies to employers with 20 or more employees.
The ADEA offers some similar protections as California’s FEHA, but there are key differences:
- The ADEA applies to workers 40 and over, while FEHA protects workers of any age from age harassment.
- FEHA covers more employers by applying to those with 5+ employees.
- FEHA offers broader protections by only requiring age be a motivating factor, versus the ADEA’s stricter causation standard.
When state and federal laws overlap, employers must comply with whichever law offers greater protection. So for most California employers, FEHA imposes the main age discrimination standards.20
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.
- The American Workplace’s Bias Against Age – Article by Axios.
- Employers can use phrases in your resume to unfairly discriminate based on age—how to protect yourself against it – Tips by CNBC.
- The Age Discrimination in Employment Act of 1967 – Full text of the statute, provided by the Equal Employment Opportunity Commission.
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”); also see the Federal Age Discrimination in Employment Act at eeoc.gov.
- Fair Employment and Housing Act 12926 — Definitions. (“(b) “Age” refers to the chronological age of any individual who has reached his or her 40th birthday.”)
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: (c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.”)
- FEHA 12940.
- California Code of Regulations 11074 — General Prohibition Against Discrimination on the Basis of Age over the Age of Forty. (“(a) Statement of Purpose. The purpose of the law prohibiting age discrimination in employment is to guarantee all protected individuals 40 or over employment opportunities commensurate with their abilities. These regulations are promulgated to assure that employment opportunities for those protected persons over the age of 40 are based upon their abilities and are not conditioned upon age-based stereotypes and unsupported generalizations about their qualifications or job performance. In addition, these regulations are promulgated to clarify when the use of mandatory retirement programs that are based upon age over the age of 40 is unlawful.”)
- California Code of Regulations 11076 — Establishing Age Discrimination (“(a) Employers. Discrimination on the basis of age may be established by showing that a job applicant’s or employee’s age over 40 was considered in the denial of an employment benefit.”). See, for example, Jorgensen v. Loyola Marymount University (Cal.App. 2021) ; Atkins v. St. Cecilia Catholic School (Cal.App. 2023) .
- Fair Employment and Housing Act 12940 — Unlawful Practices. (“The Legislature hereby declares its rejection of the court of appeal opinion in Marks v. Loral Corp. (1997) 57 Cal.App.4th 30, and states that the opinion does not affect existing law in any way, including, but not limited to, the law pertaining to disparate treatment. The Legislature declares its intent that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group, and further declares its intent that the disparate impact theory of proof may be used in claims of age discrimination. The Legislature further reaffirms and declares its intent that the courts interpret the state’s statutes prohibiting age discrimination in employment broadly and vigorously, in a manner comparable to prohibitions against sex and race discrimination, and with the goal of not only protecting older workers as individuals, but also of protecting older workers as a group, since they face unique obstacles in the later phases of their careers. Nothing in this section shall limit the affirmative defenses traditionally available in employment discrimination cases including, but not limited to, those set forth in Section 7286.7 of Title 2 of the California Code of Regulations.”)
- California Code of Regulations 11084 — Retirement Practices. (“(a) Mandatory Retirement – Generally. Generally, it is discrimination on the basis of age for a private employer to discharge or force the retirement of an employee because such employee has reached a certain chronological age over 40. (b) Retirement Plans Generally. Generally, any provision in a private employer’s retirement plan, pension plan, collective bargaining agreement or similar plan or agreement that requires mandatory retirement of an employee over 40 years of age is unlawful.”)
- California Code of Regulations 11084 — Retirement Practices. (“(c) Mandatory Retirement Permitted. Mandatory retirement of the following employees is not unlawful: (1) Any employee who has attained 65 years of age and who for the two year period immediately prior to retirement, was employed in a bona fide executive or high policymaking position, providing that at the time of mandatory retirement, the employee is entitled to receive an immediate non-forfeitable annual retirement benefit from the current employer, which equals a minimum of $27,000.00, and is either derived from one or a combination of plans such as profitsharing, pension, savings, or deferred compensation plans. (2) Any employee who has attained 70 years of age and is a physician employed by a professional medical corporation, the articles or bylaws of which provide for compulsory retirement.”)
- California Code of Regulations 11078 — Recruitment and Advertising. (“(1) Recruitment. The provisions of section 11016(a) are applicable and are incorporated by reference herein. Generally, during recruitment it is unlawful for employers to refuse to consider applicants because they are over 40 years of age. However, it is lawful for an employer to participate in established recruitment programs with high schools, colleges, universities and trade schools. It is also lawful for employers to utilize temporary hiring programs directed at youth, even though such programs traditionally provide disproportionately few applicants who are over 40. However, exclusive screening and hiring of applicants provided through the above recruitment or temporary programs will constitute discrimination on the basis of age if the programs are used to evade the Act’s prohibition against age discrimination.”)
- California Code of Regulations 11079 — Pre-Employement Inquiries, Interviews and Applications. (“(a) Pre-Employment Inquiries. Pre-employment inquiries that would result in the direct or indirect identification of persons on the basis of age are unlawful. This provision applies to oral and written inquiries and interviews. Pre-employment inquiries that result in the identification of persons on the basis of age shall not be unlawful when made for purposes of applicable reporting requirements or to maintain applicant flow data provided that the inquiries are made in a manner consistent with Section 11013 (and particularly subsection (b)) of Article 1. (b) Applications. It is discrimination on the basis of age for an employer or other covered entity to reject or refuse to seriously and fairly consider the application form, pre-employment questionnaire, oral application or the oral or written inquiry of an individual because such individual is over 40.”)
- Fair Employment and Housing Act 12926 — Definitions. (“(d) “Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities.”). FEHA 12940. Harris v. City of Santa Monica (2013) 56 Cal.4th 203. 29 U.S.C. § 623. Gross v. FBL Financial Services, Inc. (2009) 557 U.S. 167. Government Code § 12960. California Code of Regulations, Title 2, § 10022. 29 U.S.C. § 626(d).
- Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on his or her request, the right-to-sue notice.”); California Assembly Bill 9 (2019).
- Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) … The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant’s residence or principal office.”)
- Fair Employment and Housing Act 12965 — Unlawful Practices. (“(b) … In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorney’s fees and costs, including expert witness fees.”)
- Government Code 12940 GC — Employers, labor organizations, employment agencies and other persons; unlawful employment practice; exceptions FEHA wrongful termination / retaliation. (“It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: . . . (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.”)
- California Code of Regulations (CCR) tit. 2, § 11021. (“(a) FEHA Retaliation Generally. It is unlawful for an employer or other covered entity to demote, suspend, reduce, fail to hire or consider for hire, fail to give equal consideration in making employment decisions, fail to treat impartially in the context of any recommendations for subsequent employment that the employer or other covered entity may make, adversely affect working conditions or otherwise deny any employment benefit to an individual because that individual has opposed practices prohibited by the Act or has filed a complaint, testified, assisted or participated in any manner in an investigation, proceeding, or hearing conducted by the Council or Department or its staff. (1) Opposition to practices prohibited by the Act includes, but is not limited to: (A) Seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (B) Assisting or advising any person in seeking the advice of the Department or Council, whether or not a complaint is filed, and if a complaint is filed, whether or not the complaint is ultimately sustained; (C) Opposing employment practices that an individual reasonably believes to exist and believes to be a violation of the Act; (D) Participating in an activity that is perceived by the employer or other covered entity as opposition to discrimination, whether or not so intended by the individual expressing the opposition; or (E) Contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination on a basis enumerated in the Act.”)
- 29 U.S.C. § 626(f).
- 29 U.S.C. §§ 621-634.