Age Discrimination

Experience should be an asset, not a reason to push you out. California law prohibits discrimination against employees age 40 and over, and an age discrimination lawyer can help when you have been laid off, demoted, or replaced by a younger worker.

Smith Trial Group represents employees across Orange County and Southern California in age discrimination and wrongful termination cases. Consultations are free, and we work on contingency.

On this page: The law · Warning signs · Severance and your rights · FAQ

Age Discrimination Law in California

The California Fair Employment and Housing Act (FEHA) protects workers 40 and older from age discrimination by employers with five or more employees. The federal Age Discrimination in Employment Act (ADEA) also applies to employers with 20 or more employees. FEHA is usually the stronger law: it covers smaller employers and allows uncapped emotional distress and punitive damages.

Age discrimination is rarely announced. It usually shows up as a pattern, such as who is selected for layoffs, who gets “managed out,” and who replaces the employee.

Warning Signs of Age Discrimination

• You are replaced by a significantly younger employee, often at lower pay
• Layoffs or “restructuring” fall mostly on older workers
• Comments about being “overqualified,” needing “fresh energy,” “culture fit,” or “digital natives”
• Questions about when you plan to retire
• Being passed over for training, promotions, or new projects in favor of younger colleagues
• Sudden negative reviews after a long record of good performance

Severance Offers and Your Rights

Older workers are often offered severance in exchange for a release of claims. Federal law requires certain protections before an employee 40 or older can waive age claims, including time to consider the agreement (21 days for an individual, 45 days in a group layoff) and seven days to revoke after signing. Agreements that skip these steps may not be enforceable as to age claims. Have your severance agreement reviewed before you sign.

What an Age Discrimination Lawyer Can Recover for You

Age discrimination remedies can include back pay and lost benefits, including retirement contributions, front pay, emotional distress damages, punitive damages in appropriate cases, and attorney’s fees. See also wrongful termination and workplace discrimination.

Helpful resources: California Civil Rights Department · EEOC: Age Discrimination

How Age Discrimination Is Proven

Age discrimination is usually proven with circumstantial evidence. Courts look at whether you were qualified and performing well, whether you suffered an adverse action, and whether the circumstances suggest age was a substantial motivating reason, for example being replaced by someone significantly younger. The employer then offers its explanation, and the question becomes whether that explanation is the real reason or a pretext. Evidence that often matters includes:

• Comments about age, energy, technology skills, “culture fit” or retirement.
• A pattern of older employees being pushed out or excluded from new initiatives.
• Strong reviews followed by sudden criticism.
• Shifting or inconsistent reasons for the decision.
• Statistics from a layoff showing older workers were disproportionately selected.

California Law vs. Federal Law

California’s Fair Employment and Housing Act is generally more protective than the federal Age Discrimination in Employment Act. FEHA applies to employers with five or more employees (the ADEA applies at 20), allows emotional distress and punitive damages that the ADEA does not, and does not cap damages. California law also recognizes that using salary as a basis for selection can be age discrimination when it disproportionately affects older workers. Most California age cases are brought under FEHA.

Pressure to Retire

Employers may offer voluntary early retirement incentives, but they cannot force employees to retire because of age, and they cannot use pressure, threats or a hostile environment to push older employees out. If you were forced to resign because conditions became intolerable, you may have a claim for constructive discharge. See constructive discharge.

Layoffs and Severance

Reductions in force are where many age discrimination claims arise, and the release you are asked to sign has special protections for workers 40 and older. See age discrimination in layoffs and severance agreement review.

Frequently Asked Questions

My employer says my position was eliminated. Can I still have a case?

Yes. Position eliminations are sometimes genuine and sometimes a pretext. Who was selected, who absorbed your duties, and whether a younger person was later hired into a similar role all matter.

I was replaced by someone who is also over 40. Can I still have a claim?

Possibly. A substantially younger replacement can still support an age discrimination claim even if that person is over 40.

How long do I have to file?

FEHA claims generally must be filed with the California Civil Rights Department within three years. Federal ADEA claims have much shorter deadlines. Talk to a lawyer promptly.

Related guides: Your rights in a layoff · How long do I have to sue my employer?