California Age Discrimination Attorney
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What California Law Says About Age Discrimination, And What You Can Do
California’s Fair Employment and Housing Act (FEHA), at Government Code § 12940(a), prohibits age discrimination against workers 40 and older at companies with as few as five employees. That threshold is far lower than the federal Age Discrimination in Employment Act (ADEA), which requires 20 or more employees, meaning most California workers have stronger state-law protections available to them. FEHA covers every term and condition of employment: hiring, firing, pay, promotions, benefits, training, and job assignments. Workers have three years from the discriminatory act to file with the California Civil Rights Department (CRD), and one year after receiving a Right-to-Sue notice to file a civil lawsuit. A California employment discrimination attorney can pursue back pay, front pay, emotional distress damages, and punitive damages with no statutory cap on total recovery.
What Age Discrimination Looks Like Under California Law
Under Government Code § 12940(a), discrimination means any adverse employment decision made because of a worker’s age. In practice, employers rarely announce that age is the reason. The pattern almost always shows up obliquely: a sudden shift in how an older employee is evaluated, excluded, or discussed, followed shortly by a concrete adverse action such as a demotion, layoff, or pay cut.
FEHA also separately prohibits harassment that creates a hostile work environment based on age, retaliation against anyone who complains about age discrimination or participates in a FEHA proceeding, and an employer’s failure to take all reasonable steps to prevent discrimination and harassment under Government Code § 12940(k).
To understand what discrimination looks like in practice, consider this illustrative scenario: A 54-year-old regional manager with 12 years of positive reviews receives her first “needs improvement” rating two months after her new supervisor begins making comments about the team “needing fresh energy.” Within 90 days she is placed on a performance improvement plan. Three younger colleagues with less tenure are not. She is ultimately laid off; her position is filled six weeks later by a 31-year-old. Each step in that sequence maps to a covered employment decision under § 12940(a), and together they form the kind of circumstantial pattern that supports a FEHA claim.
Age Discrimination Red Flags: A Pattern Checklist
Each item below maps to a covered employment decision under Government Code § 12940(a). If several of these appeared together or close in time, document each one with dates, names, and any written records.
# | Red Flag | FEHA-Covered Decision Category
|
|---|---|---|
1 | Sudden negative performance reviews that began after you turned 40, with no prior documented issues, shortly followed by discipline or termination | Firing / terms of employment |
2 | Exclusion from training programs or technology rollouts offered to younger colleagues in the same or similar roles | Training |
3 | Passed over for promotion despite seniority or qualifications, in favor of a substantially younger candidate, with no explanation tied to objective criteria | Promotion |
4 | Reassigned to less desirable duties, shifts, or territories after younger employees joined the team, with no performance-based justification | Job assignments |
5 | Pay cut or benefit reduction applied to you but not to younger peers with equivalent or lesser performance records | Compensation / benefits |
6 | Age-coded comments from supervisors or management: references to needing “fresh energy,” being a “cultural fit,” wanting someone who can “grow with the company,” or suggestions that you consider retirement | Terms and conditions (evidence of discriminatory intent) |
7 | Layoff or RIF that disproportionately affects older workers, particularly when the position is filled by a younger person within weeks or months | Firing / layoff |
8 | Rejection during hiring despite meeting all posted qualifications, when the role is filled by a substantially younger candidate with comparable or lesser credentials | Hiring |
9 | Exclusion from meetings, decision-making, or communications that were previously part of your role, without explanation | Terms and conditions of employment |
A frequent employer defense is that the position was eliminated in a legitimate reduction in force. When a role reappears shortly after a layoff, filled by a younger worker, that defense weakens considerably and the pattern of surrounding facts becomes critical. For a deeper look at how discrimination shows up during hiring specifically, see our guide on age discrimination in hiring and your rights.
Does California Law Cover Your Employer? FEHA vs. the ADEA
The two laws that govern age discrimination claims differ in meaningful ways. For most California workers, FEHA provides the stronger and more accessible path.
Factor | FEHA (California) | ADEA (Federal)
|
|---|---|---|
Employer size threshold | 5 or more employees | 20 or more employees |
Protected class | Workers aged 40 and older | Workers aged 40 and older |
Administrative filing deadline | 3 years from discriminatory act (CRD) | 300 days from discriminatory act (EEOC, California deferral state) |
Lawsuit deadline after agency notice | 1 year after CRD Right-to-Sue | 90 days after EEOC Right-to-Sue |
Statutory cap on damages | None | Applies (no compensatory or punitive damages available under ADEA) |
Attorney’s fees for prevailing plaintiff | The current codified fee-award provision appears in Gov. Code § 12965 subdivision (c)(6) (court ‘in its discretion, may award’). The substantive rule (prevailing plaintiff recovers fees, costs, expert fees unless special circumstances) is correct, but the article’s citation to subdivision ‘(b)’ reflects the pre-2019 numbering; the award is discretionary in text (though effectively mandatory for prevailing plaintiffs per case law) | Available under ADEA but not on the same mandatory basis |
Because FEHA covers employers with as few as five employees, most California workers at small and mid-size companies who would be unprotected under federal law still have a viable state claim. The longer filing window and the absence of a damages cap are the two most consequential advantages of pursuing a FEHA claim. For more detail on how these deadlines work in practice, see our article on the age discrimination statute of limitations in California.
California Filing Deadlines: Why Acting Fast Matters
Missing a filing deadline is the single most common reason an otherwise valid age discrimination claim cannot proceed. The sequence under FEHA is strict:
- Step 1: The discriminatory act occurs (termination, demotion, pay cut, etc.).
- Step 2: You must file a complaint with the California Civil Rights Department within three years of that act.
- Step 3: The CRD investigates and issues a Right-to-Sue notice.
- Step 4: You must file a civil lawsuit within one year of the Right-to-Sue notice.
Under the federal ADEA, the window is far shorter: 300 days to file with the EEOC, then 90 days to file a federal lawsuit after receiving the EEOC’s right-to-sue letter. A worker who waits to consult an attorney may still have time under FEHA even after the ADEA window has closed, but that gap narrows every day. If you accepted a severance agreement, consult an attorney before assuming your rights are fully waived; the terms and circumstances of severance waivers involve specific legal requirements, and not all waivers are enforceable as signed.
What You Can Recover in a California Age Discrimination Claim
FEHA imposes no statutory cap on damages. A successful claim can include all of the following categories of recovery:
- Back pay: Lost wages and benefits from the date of the adverse action through the resolution of the case.
- Front pay: Future lost earnings when reinstatement to your former position is not feasible.
- Emotional distress damages: Compensation for pain, suffering, anxiety, and other non-economic harm caused by the discrimination.
- Punitive damages: Available when the employer acted with malice, oppression, or fraud. These are designed to punish and deter, and are not capped under FEHA.
- Attorney’s fees and expert witness fees: Under Government Code § 12965(b), a prevailing FEHA plaintiff is entitled to recover reasonable attorney’s fees, litigation costs, and expert witness fees, calculated using the lodestar method (the attorney’s reasonable hourly rate multiplied by reasonable hours expended). The court may decline to award fees only if special circumstances make such an award unjust.
The mandatory fee-shifting provision under § 12965(b) is significant for cost concerns. Because a prevailing plaintiff recovers attorney’s fees from the employer, many qualified FEHA claims are financially accessible even for workers who cannot pay hourly rates. For a broader look at what recoveries in California cases have looked like, see our overview of the average age discrimination settlement in California.
What an Age Discrimination Attorney Does at Each Stage
evidence. Here is how representation typically proceeds:
- Case evaluation: Mapping your specific facts to the FEHA elements, assessing the strength of direct and circumstantial evidence, and identifying whether harassment or retaliation claims run alongside the discrimination claim.
- CRD complaint filing: Drafting and submitting the administrative complaint within the three-year window, making sure the complaint accurately captures the adverse actions and the covered basis.
- Investigation and evidence gathering: Collecting personnel files, performance records, comparator data on younger employees, internal communications, and witness statements while that evidence is still available.
- Negotiation and mediation: Many FEHA cases resolve before trial through negotiated settlements or CRD-facilitated mediation.
- Civil litigation: If no resolution is reached, filing a civil lawsuit, conducting discovery, and trying the case in court. FEHA’s fee-shifting provision means a prevailing plaintiff recovers attorney’s fees from the employer.
For a full explanation of how California law defines what counts as age-based discrimination across different employment decisions, see our detailed guide on age discrimination in the workplace.
One Exception to Know: Retiree Health Benefits and Medicare
FEHA contains a specific, narrow carve-out for retiree health benefits. The carve-out permitting alteration/reduction/elimination of retiree health benefits upon Medicare eligibility, applying to plans in effect on or after January 1, 2011, is correct as to substance and date; however the provision is located in § 12940 subdivision (j)(4)(B)/(a) area, not subdivision (k). The article’s substantive statement and 2011 date match, but the ‘(k)(B)’ subdivision label is imprecise
If your situation involves a reduction in retiree health coverage tied to Medicare eligibility, that specific fact pattern falls within this statutory exception. Other adverse actions against active employees based on age remain fully covered.
What This Means If You Were Passed Over, Pushed Out, or Let Go
If any of the red flags above match your situation, the most important thing to do right now is to write down what happened: dates, names, what was said, and who witnessed it. Evidence fades quickly and employment records can disappear after a separation. The three-year FEHA filing window is longer than most workers expect, but it is not unlimited, and the clock is already running from the date the discriminatory act occurred.
If you signed a severance agreement, do not assume your claims are gone; bring the agreement to an attorney before drawing that conclusion. Cost should not be a barrier to getting a case evaluation: FEHA’s mandatory fee-shifting provision means that if you prevail, your attorney’s fees come from the employer, not from you.
Frequently Asked Questions
Does my employer have to use the word “age” for this to be discrimination?
No. Direct statements about age are rare. FEHA claims are frequently built on circumstantial evidence: the timing of adverse actions relative to age, how younger employees with comparable or lesser qualifications were treated differently, and comments that signal age-based stereotyping (“fresh energy,” “cultural fit,” retirement suggestions). The statute does not require a smoking-gun admission.
I work at a company with only eight employees. Am I protected?
Yes. FEHA covers employers with five or more employees, so an eight-person company is within its reach. Federal ADEA would not cover you, since it requires 20 or more, but California law does.
I was laid off. Can I still claim age discrimination?
A reduction in force is a common employer defense, but it does not automatically defeat a FEHA claim. If the layoff disproportionately affected workers over 40, or if your position was filled by a younger person shortly after you were let go, those facts are relevant to whether the stated reason was genuine. Document who else was laid off and what happened to your role after your departure.
What if I already signed a severance agreement?
A signed severance agreement may or may not have effectively waived your FEHA claims, depending on how it was drafted, what disclosures were made, and whether you were given adequate time to review it. This is a legal question that requires review of the specific document. Consult an attorney before concluding that your rights are gone.
How long will a FEHA age discrimination case take?
Timelines vary considerably depending on whether the matter resolves at the administrative stage, through settlement, or through trial. The administrative phase with the CRD alone can take months. Cases that proceed to civil litigation typically take one to several years. Your attorney can give you a more specific estimate after reviewing the facts of your situation.
Contact Setareh Law Group: If you believe you have experienced age discrimination at work, the attorneys at Setareh Law Group are available to evaluate your situation. Consultations are confidential. Contact our office to speak with a California age discrimination attorney about your rights and your options.
Contact us today:
📞 Phone: 310-888-7771
✉️ Email: help@setarehlaw.com
🌐 Address: 420 N Camden Dr, Beverly Hills CA, 90210
Disclaimer: This article is general legal information about California age discrimination law and is provided for educational purposes only. It does not constitute legal advice, and reading it does not create an attorney-client relationship between you and Setareh Law Group or any of its attorneys. Laws change, and the application of any law depends on the specific facts of your situation. Do not rely on this article as a substitute for consultation with a licensed California employment attorney about your individual circumstances. No outcome is guaranteed.
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