If you are 40 years old or older, both federal law and California state law protect you from “age discrimination” in the workplace. Signs of age discrimination are being demoted, fired, or passed over for a promotion for no justifiable reason.
If you are a victim of age discrimination, you can file a complaint with California’s Civil Rights Department (CRD) and possibly bring a civil lawsuit. Your employer cannot retaliate against you for filing an age discrimination claim.
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. The Law
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 in California.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 an older individual’s:
- qualifications,
- job performance,
- health,
- work habits, and
- productivity.6
2. Am I a victim?
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. Can I sue?
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 (CRD).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 to 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 found, the case will be closed. After that point, you have the immediate right to take your case to court and file a traditional lawsuit.
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 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 costs,16 and
- 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).
Legal References:
- Fair Employment and Housing Act 12940; also see the Federal Age Discrimination in Employment Act at eeoc.gov. See, for example, Hoglund v. Sierra Nevada Memorial-Miners Hospital (Cal.App. 2024) (“Hoglund presented copious evidence of Horne’s age discrimination. Horne criticized Hoglund’s appearance as old-fashioned and dowdy. She repeatedly asked Hoglund when she would retire, saying Hoglund had been there since the dark ages and knew where all the bodies were buried. Horne asserted that she wanted to hire “babies” because they are easier to train, and she chose to train Prout on the new computer program in part because she believed young people are easier to train. When Hoglund asked for a more convenient workspace, because Horne had deprived her of an adequate workstation, Horne remarked that maybe Hoglund was “too old to be running around.” Upon Hoglund’s return from leave, Horne said she was surprised Hoglund did not just retire because she was not really needed, and continued to say it was time for “new blood” and she should have just retired. Horne expressed sympathy for the younger employees who were fired because they had families, and laughed when Hoglund said older employees might also struggle. Hoglund considered these constant comments to be ageist and offensive, telling both Plass and Lucas that she believed Horne sought to push her out due to her age. Horne’s statements and actions towards Hoglund are substantial evidence of discriminatory animus towards Hoglund based on her age.”).
- Fair Employment and Housing Act 12926.
- Same.
- Fair Employment and Housing Act 12940.
- FEHA 12940.
- California Code of Regulations 11074.
- California Code of Regulations 11076. 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. 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.
- California Code of Regulations 11084. In general, the FEHA prohibits retirement plans with a mandatory age of retirement. However, there are certain exceptions that allow for mandatory retirement. This includes physicians age 70 or older who are employed by a professional medical corporation that provides for compulsory retirement. Another exception are 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.
- 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.
- California Code of Regulations 11078. 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.
- California Code of Regulations 11079.
- Fair Employment and Housing Act 12926. 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). 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.
- Fair Employment and Housing Act 12965; California Assembly Bill 9 (2019).
- Fair Employment and Housing Act 12965.
- Fair Employment and Housing Act 12965.
- Government Code 12940 GC.
- California Code of Regulations (CCR) tit. 2, § 11021.