How to Spot Age Discrimination in California Workplaces

December 17, 2024

Table of Contents

1. Key Takeaways
2. Is This Your Situation?
3. What Are the Signs of Age Discrimination?
   1. Comments about age or retirement
   2. Younger workers getting the opportunities
   3. Layoffs that target older or higher-paid workers
   4. Pressure to retire
   5. A sudden change in performance reviews
4. Age Discrimination in California: FEHA vs. the Federal ADEA
5. Can Age-Related Comments Be Harassment?
6. Can My Employer Retaliate If I Complain?
7. What to Consider If You Suspect Age Discrimination
8. What Can You Recover?
9. How Long Do I Have to File an Age Discrimination Claim?
10. When to Talk to a California Employment Lawyer
11. Frequently Asked Questions
    1. Does age discrimination law protect workers under 40?
    2. My employer has fewer than 20 employees. Am I still protected?
    3. Is it age discrimination to lay off the highest-paid employees?
    4. How long do I have to sign a severance agreement that waives age claims?

The signs of age discrimination are not always obvious. A comment about “fresh energy,” a layoff that seems to land only on older workers, or a sudden string of bad reviews after years of good ones can all be part of the picture. Below, we explain the signs that often show up first. We also cover how California law compares with federal law.

Is age discrimination illegal in California?

Yes. Under the Fair Employment and Housing Act, an employer with five or more employees generally may not refuse to hire, discharge, or discriminate in pay or other terms and conditions of employment because a person is 40 or older. California’s protections reach smaller employers and allow more types of damages than federal law.

Key Takeaways

• California protects workers 40 and older (Gov. Code 12926(b)) at employers with 5 or more employees. The federal ADEA covers employers with 20 or more (EEOC).
• Using salary to pick who gets laid off may be found to be age discrimination if it hurts older workers as a group (Gov. Code 12941).
• A severance agreement that waives federal age claims must give you at least 21 days to consider it and 7 days to revoke (EEOC).
• Under California law, remedies can include back pay, emotional distress damages, and punitive damages (CRD).
• For many FEHA claims, there are generally three years to begin the process with the Civil Rights Department (CRD).

Is This Your Situation?

• You are 40 or older and were passed over for a promotion that went to a younger, less experienced coworker.
• Your manager has made remarks about your age, retirement plans, or “keeping up.”
• Your reviews turned negative soon after a new, younger supervisor arrived.
• A layoff or “restructuring” seemed to fall mostly on older or higher-paid employees.
• You were pushed to retire or offered a package you did not ask for.

What Are the Signs of Age Discrimination?

The signs of age discrimination usually show up as a pattern rather than a single event. One comment or one bad review may not prove much on its own. Several signs of age discrimination together, close in time, can point to age as the real reason.

Comments about age or retirement

Remarks like “slow,” “set in your ways,” “not a digital native,” or repeated questions about when you plan to retire can show how decision-makers see older workers.

Younger workers getting the opportunities

Watch who gets promotions, key projects, training, and new clients. Favoring one employee is not always illegal, but it can become discrimination when the pattern tracks a protected trait like age. Our article on when workplace favoritism becomes illegal explains where that line falls.

Layoffs that target older or higher-paid workers

Under California law, using salary to choose who to terminate “may be found to constitute age discrimination” if it adversely impacts older workers as a group. The Legislature also declared that “the disparate impact theory of proof may be used in claims of age discrimination” (Government Code section 12941). A layoff described as “cost-cutting” can still be challenged on this basis.

Pressure to retire

Repeated suggestions that it is “time to step aside,” reduced duties, or a buyout pushed as the only option can be signs. A separation package may ask you to give up age claims. Federal law sets minimum protections for that waiver. According to the EEOC guidance on severance waivers, it must:

• Name the Age Discrimination in Employment Act (ADEA)
• Advise you in writing to consult an attorney
• Give you at least 21 days to consider it, or 45 days in a group layoff
• Give you 7 days to revoke your signature

Read our article on severance agreements in California before you sign anything.

A sudden change in performance reviews

New criticism after years of strong reviews can be one of the signs of age discrimination. It sometimes builds a paper trail for a termination, especially right after a change in management. Keep copies of your past reviews that you are lawfully entitled to keep.

Age Discrimination in California: FEHA vs. the Federal ADEA

California workers are covered by two laws: the state Fair Employment and Housing Act (FEHA) and the federal Age Discrimination in Employment Act (ADEA). The state law is usually broader.

	California FEHA	Federal ADEA
Who is protected	Anyone who has reached their 40th birthday (Gov. Code 12926(b))	People age 40 or older (EEOC)
Employers covered	5 or more employees (CRD)	20 or more employees (EEOC)
Emotional distress and punitive damages	Available (CRD)	Not available for age claims; liquidated damages equal to back pay may be awarded for especially malicious or reckless conduct (EEOC)
Salary-based layoffs	May be age discrimination if they adversely impact older workers (Gov. Code 12941)	Disparate-impact claims are allowed, but an employer may defend a practice based on “reasonable factors other than age” (Smith v. City of Jackson (2005) 544 U.S. 228)

For many California workers, FEHA offers the broader protection. Our article on legal protections against discrimination at work covers the other traits FEHA protects.

Can Age-Related Comments Be Harassment?

Yes, in some circumstances. The EEOC states that “It is unlawful to harass a person because of his or her age.” The law “doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious.” Harassment becomes illegal when it is “so frequent or severe that it creates a hostile or offensive work environment” or leads to an adverse decision like a firing or demotion (EEOC). Read more about California hostile work environment laws.

Can My Employer Retaliate If I Complain?

No. FEHA makes it unlawful for an employer to discharge or otherwise discriminate against a person because they opposed practices the law forbids or filed a complaint (Government Code section 12940(h)). Our article on what counts as retaliation under California law describes the evidence that often matters.

What to Consider If You Suspect Age Discrimination

1. Consider writing down what happened. Record dates, what was said, who said it, and who was present. Notes made close to the event are more reliable.
2. Keep documents you are lawfully entitled to keep. Your own reviews, pay records, and emails sent to you can help. Do not take confidential company files.
3. Consider reporting the problem in writing. If appropriate, describe accurately what occurred and why you believe age played a part.
4. Think carefully before signing a release. A severance or retirement agreement may give up claims. Consider speaking with an employment attorney before you sign.

What Can You Recover?

It depends on which law applies. Under California law, the Civil Rights Department lists “Back pay (past lost earnings),” “Damages for emotional distress,” and “Punitive damages.” It also lists future lost earnings, reinstatement, and legal fees (CRD). Under federal law, the EEOC states that for intentional age discrimination, “victims cannot recover either compensatory or punitive damages,” though liquidated damages may be available (EEOC).

How Long Do I Have to File an Age Discrimination Claim?

Different employment claims can have different filing deadlines. For many FEHA discrimination claims, a complaint generally “must be filed within three years” of the discriminatory act (CRD). That period does not apply to every claim, and federal claims follow different rules. If your job ended, our article on when a firing is illegal explains related claims. An employment attorney can evaluate which deadlines apply to your situation.

When to Talk to a California Employment Lawyer

If you were fired, demoted, laid off, denied a promotion, or pushed to retire and you believe age played a part, consider speaking with a California employment lawyer. An attorney can review the timing, the comments, and who was affected. They can also explain your options and the deadlines that apply. In Los Angeles, see our Los Angeles age discrimination lawyer page, or learn more about our age discrimination practice.

At Abramson Labor Group, we represent California employees facing age discrimination. Our case reviews are free and confidential, and we work on contingency. Request your free case evaluation or call us at (213) 493-6300.

Frequently Asked Questions

Does age discrimination law protect workers under 40?

Generally, no. California defines age as the age of anyone “who has reached a 40th birthday” (Gov. Code 12926(b)), and the EEOC states the ADEA “does not protect workers under the age of 40” (EEOC).

My employer has fewer than 20 employees. Am I still protected?

Possibly. The federal ADEA applies to employers with 20 or more employees, but California’s FEHA applies to employers of 5 or more (CRD).

Is it age discrimination to lay off the highest-paid employees?

It can be. California law says using salary to decide terminations “may be found to constitute age discrimination” if it adversely impacts older workers as a group (Gov. Code 12941). Whether it does depends on the facts.

How long do I have to sign a severance agreement that waives age claims?

If the agreement waives federal age discrimination claims, you generally must get at least 21 days to consider it, or 45 days in a group layoff, plus 7 days to revoke after signing (EEOC). An employment attorney can review whether the agreement meets these rules.

This article is general information about California law, not legal advice. Every situation is different. For advice about your specific case, talk to a licensed California employment attorney.