Updated January 1, 2020
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 California and federal employment discrimination laws.
Below, our California employment law 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?
For anyone age 40 and over, employment discrimination based on age for anyone age 40 or older is a violation of the California Fair Employment and Housing Act (FEHA).1
Age discrimination in California only applies to 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
Unions and labor organizations are also prohibited from excluding, expelling, or restricting membership to a person based on age.3 Age discrimination prohibitions also apply to apprenticeship training programs and employment agencies.45
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
Discrimination can take many forms. For most employees, getting fired or laid off because of their age is the most harmful type of discrimination. However, any adverse or unlawful actions against an employee may be a form of discrimination.
Age discrimination is established by showing that a job applicant’s age over 40 or employee’s age over 40 was considered in the denial of an employment benefit.7 Denied employment benefits include:
- Failure to promote
- Reduction in salary
- Denied a work environment free of discrimination
- Denied equal pay
- Denied a promotion
- Denied reinstatement
- Forced to quit
- Forced to transfer
- Denied medical leave
Employers may not come right out and tell an employee they are being terminated or denied a promotion because of their age. There are a number of signs that an employee is being discriminated against because of their age. This includes:
- 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
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, nonforfeitable annual retirement benefit from the employer.
Recruiting Young Workers
Employers are generally aware that it is against the law to refuse to consider applicants because they 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 an applicant’s age or date of birth. However, it is unlawful to use an application or pre-employment inquiry to reject an applicant because he or she is 40-years-old or older.12
Jokes About Age
Employers and co-workers may make jokes about older workers. Older workers 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 older employees 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, hair styles are a protected area – Senate Bill 188 (2019).) However, 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 the individual can file a lawsuit against the employer.
It may be more beneficial for older workers to take their case to the California Department of Fair Employment and Housing (DFEH) or file their claim in the California courts. California state anti-discrimination laws generally provide broader protections than federal law and apply to more employers.13
Your attorney may file a complaint with the DFEH and obtain an immediate right to sue notice without waiting for the administrative process first. Talk to your California employment discrimination attorney if you have any questions about where you should file your claim.
You can file your complaint directly with the DFEH. In most age discrimination cases, you have three years to contact the DFEH and file a Pre-Complaint Inquiry. The complaint can be filed online, by phone, or using the form from the DFEH website. The pre-complaint inquiry will initiate an intake interview with the DFEH and help determine whether a complaint can be accepted for investigation.
An investigator will contact the individual within 60 days and go over the details of the inquiry. If the DFEH representative determines a complaint cannot be accepted, the matter will be dismissed, and the individual has the immediate right to sue their employer in court. If the representative accepts the pre-complaint inquiry, a complaint will be prepared for your signature and delivered to the employer, and can be dual-filed with the EEOC.
After the employer responds to the complaint, the DFEH will review the answer. In many cases, the DFEH will offer dispute resolution services, which provides a way for the employee and employer to negotiate a resolution to the complaint. If the complaint cannot be resolved through negotiations, the DFEH 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 DFEH Legal Division. If there is no violation, the case will be closed. After the case is closed, the employee has the immediate right to take their case to court.
The DFEH Legal Division requires the parties to go through mediation. Mediation is a type of alternative dispute resolution where a neutral mediator helps the parties come together to find a mutually agreeable solution. A benefit of mediation is that it allows the employer and employee to come up with their own way to settle the dispute, without leaving it all up to a judge to decide the outcome.
If the parties cannot settle the dispute through mediation, the DFEH could file a lawsuit on behalf of the employee against the employer. If the DFEH does not pursue the claim, it will close the investigation and the employee has the immediate right to file a lawsuit against the employer.
Employees who are discriminated against because they are 40-years-old or older can sue their employers for age discrimination. As indicated above, an employee generally has to file a complaint with the DFEH or EEOC before they 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 DFEH or EEOC investigation. However, if you receive a Right-to-Sue notice, your complaint will not be investigated by DFEH. Alternatively, you may also wait until the DFEH dismisses your case or finds no violation before taking your case to court.
According to the DFEH, proceeding directly to court without an investigation by the DFEH is only advisable if you have an attorney. Your attorney can obtain a 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, the employer and employee can negotiate a settlement and settle the case out of court.
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 the victim in the same position he or she would have been but for the violation. This may include money damages, punitive damages, and equitable remedies.
Damages from employment discrimination may include losses from:
- Back pay and back wages
- Higher income from a promotion
- Higher income from a raise
- Pension benefits
- Back pay
- Bonus payments
- Pain and suffering
- Emotional distress
When an employer intentionally discriminates against an employee based on their age, the employee may be eligible to receive liquidated damages. Liquidated damages act as a way to punish the behavior of the wrongdoer and can deter the employer or other employers from engaging in similar wrongful behavior in the future.
If an employee has been fired based on their age, the court can order the employer to rehire the employee. The court can also provide for other equitable remedies, like promoting the employee or requiring the employee to be given a raise. However, these options are not always preferred. In many cases, an employee may not want to return to the hostile workplace.
If the employee wins their case against the employer, the employer may have to pay the employee’s legal fees and court costs.16
California workers 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 DFEH investigations or government inquiries
- Filing a harassment or discrimination claim
An employer cannot take retaliatory action, including termination, against an employee for citing discrimination or harassment violations or filing an age discrimination lawsuit.18 Firing an employee for filing an unpaid wage claim is considered “wrongful termination”.
If an employer retaliates against an employee for reporting FEHA violations, the employee may be able to file a complaint with the DFEH or file a lawsuit against the employer for retaliation or wrongful termination.
Call us for help…
For questions about California age discrimination laws, retaliation, or to discuss your case confidentially with one of our skilled California employment law attorneys, do not hesitate to contact us at Shouse Law Group.
We have local employment law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- 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.”)
- 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: (b) For a labor organization, 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 exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any 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 in the election of officers of the labor organization or in the selection of the labor organization’s staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.”)
- 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.”)
- 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: (d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to 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, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, where the law compels or provides for that action.”)
- 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.”)
- 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.”)
- 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.”)