Age Discrimination (40+) FAQ

In California, you are protected from age discrimination once you reach age 40. The California Fair Employment and Housing Act (FEHA) provides robust protections for workers age 40 and older, which is consistent with the federal Age Discrimination in Employment Act (ADEA). However, California's protections are often broader and more employee-friendly than federal law.

FEHA applies to employers with five or more employees, whereas federal ADEA protection applies only to employers with 20 or more employees. This means significantly more California workers enjoy age discrimination protections. The law prohibits discrimination in all aspects of employment including hiring, firing, promotion, demotion, compensation, job assignments, training opportunities, benefits, and layoffs. Age discrimination occurs when an employer treats an employee or job applicant less favorably because of their age, and the protection extends indefinitely - there is no upper age limit to these protections in California.

California employers are strongly discouraged from asking about age during job interviews, and such questions can be used as evidence of age discrimination. While not absolutely prohibited in all circumstances, pre-employment inquiries about age, date of birth, or graduation dates are considered suspect and should generally be avoided by employers. The California Civil Rights Department has issued guidance stating that such questions raise an inference of discrimination because they are rarely job-related and are often used to screen out older applicants.

Employers may only ask about age if there is a legitimate business reason directly related to job qualifications, such as verifying that an applicant meets minimum age requirements for certain positions (for example, serving alcohol). If an employer asks about your age and subsequently fails to hire you, this can serve as evidence of discriminatory intent, especially if combined with other age-related comments or if the position went to a significantly younger candidate. Employers should focus on your qualifications, skills, experience, and ability to perform the essential functions of the job, not on your age or generational characteristics.

Job postings containing terms like 'recent graduate,' 'digital native,' 'energetic,' or similar language that suggests a preference for younger workers are problematic under California law and can constitute evidence of age discrimination. While such terms may seem innocuous, they can be interpreted as coded language designed to discourage older workers from applying.

California Government Code Section 12940 prohibits advertisements that express any limitation or preference based on age. Courts and the Civil Rights Department examine the totality of the job posting, looking at whether a reasonable person of a protected age would be discouraged from applying. Terms that emphasize youth, contemporary culture, or recent educational achievements may violate this standard. Employers should focus on actual job requirements such as specific skills, certifications, or years of relevant experience rather than using age-proxy terms. If you see such language in a job posting and are not hired despite being qualified, this can support an age discrimination claim, particularly if the employer ultimately hires someone significantly younger or if there is other evidence of age bias in the hiring process.

In California, mandatory retirement based solely on age is generally illegal under FEHA. Employers cannot force employees to retire simply because they have reached a certain age, whether it's 60, 65, 70, or any other age. This protection applies regardless of whether the employer has a stated policy requiring retirement at a particular age or simply pressures older employees to retire through informal means.

There are very limited exceptions to this rule. Executives or high-level policymakers who are at least age 65 and entitled to immediate retirement benefits of at least a specified amount may be subject to mandatory retirement. Additionally, certain public safety positions such as police officers and firefighters may have mandatory retirement ages if established through collective bargaining or civil service rules and if there is a legitimate safety justification. However, these exceptions are narrowly construed. If your employer is pressuring you to retire based on your age, making comments about 'making room for younger workers,' offering retirement incentives only to older employees, or otherwise suggesting that your age is a factor in wanting you to leave, you may have a valid age discrimination claim. California law protects your right to continue working as long as you can perform the essential functions of your job.

Reverse age discrimination refers to discrimination against younger workers in favor of older workers. Under California law, FEHA's age discrimination protections apply only to individuals age 40 and older, meaning that younger workers are generally not protected from discrimination based on being 'too young.' This is different from other protected characteristics like race or sex, which protect all individuals regardless of which group they belong to.

For example, if an employer refuses to hire a 35-year-old because they prefer older candidates, the 35-year-old would not have an age discrimination claim under FEHA. However, there are some limited circumstances where younger workers might have legal recourse. If the discrimination is based on a proxy for another protected characteristic (for example, assuming younger workers will have childcare obligations, which could implicate sex or family status discrimination), other legal theories might apply. Additionally, if a younger worker over 40 is discriminated against in favor of significantly older workers, this could still constitute age discrimination within the protected class. It's also worth noting that California's constitutional right to equal protection might provide broader protections in some public employment contexts, though this area of law is still developing.

This is a complex area of California employment law where legitimate business considerations intersect with age discrimination concerns. Employers can make employment decisions, including layoffs, based on legitimate, non-discriminatory factors such as cost reduction, performance, and business needs. However, if the real reason for targeting higher-paid employees is because they tend to be older, this constitutes illegal age discrimination.

California courts use a 'mixed motive' analysis to evaluate these situations. Employers must prove that they would have made the same decision even absent the employee's age. Simply stating that a layoff was motivated by salary costs is not sufficient if age was also a motivating factor. Warning signs of age discrimination in layoff decisions include: disproportionate impact on older workers, replacement with younger workers at lower salaries, age-related comments during the decision-making process, deviation from established layoff procedures, or failure to consider less discriminatory alternatives. If you are laid off and believe age was a factor, look for evidence that similarly situated younger workers were treated differently, that the employer's stated reasons are pretextual, or that there is a pattern of replacing older workers with younger ones. Even if cost reduction is a legitimate goal, employers must implement it in a non-discriminatory manner.

Proving age discrimination in California requires showing that your age was a motivating factor in an adverse employment action. While direct evidence such as explicit age-related comments is powerful (for example, being told you're 'too old,' 'overqualified,' or that the company wants 'fresh blood'), such smoking-gun evidence is rare. More commonly, age discrimination is proven through circumstantial evidence and patterns of conduct.

Key types of evidence include: comparative evidence showing younger, less qualified individuals received better treatment; temporal proximity between revealing your age and adverse action; statistical evidence showing a pattern of age-based decisions in your workplace; deviation from normal procedures or policies in your case; age-related comments or stereotypes, even if not directly connected to the adverse action; replacement by a significantly younger worker; and shifting or inconsistent explanations for the employer's actions. Document everything: keep copies of performance reviews, emails, job postings, and notes of conversations. Witness testimony from coworkers who observed age-related comments or disparate treatment can be crucial. California uses a burden-shifting framework: you must first establish a prima facie case of discrimination, then the employer must articulate a legitimate, non-discriminatory reason, and finally you must show that reason is pretextual. An experienced employment attorney can help you identify and gather the most persuasive evidence for your specific situation.

Yes, in many cases, telling an applicant or employee they are 'overqualified' can be evidence of age discrimination, particularly when the person is over 40 and the comment is used to justify not hiring or promoting them. California courts have recognized that 'overqualified' is often a code word for 'too old' and can mask age discrimination. The term is problematic because it penalizes workers for having extensive experience and skills - qualities that typically correlate with age.

When evaluating whether an 'overqualified' justification is discriminatory, courts consider several factors: whether the employer has hired or retained other highly qualified individuals; whether the applicant was asked about age or made age-related inquiries; whether there is other evidence of age bias; whether younger, less qualified candidates were selected; and whether the 'overqualified' determination was applied consistently. Legitimate reasons for not hiring an overqualified candidate (such as documented concerns about retention, salary expectations, or genuine overqualification for a junior role) must be supported by evidence beyond mere assertion. If you are rejected as overqualified, ask for specifics about why your qualifications are a problem rather than an asset. Document the employer's response and compare your treatment to younger applicants. Combined with other evidence of age discrimination, an 'overqualified' label can significantly strengthen your case.

California provides comprehensive remedies for victims of age discrimination under FEHA. Economic damages include back pay (wages you would have earned from the discrimination until resolution), front pay (future lost earnings if reinstatement is not feasible), lost benefits such as health insurance and retirement contributions, and compensation for lost earning capacity. You can also recover non-economic damages for emotional distress, humiliation, loss of enjoyment of life, and damage to reputation - and importantly, there is no cap on these damages in FEHA cases, unlike some federal claims.

In cases involving malice, oppression, or fraud, courts can award punitive damages to punish the employer and deter future discrimination. Equitable relief may include reinstatement to your former position, promotion to the position you were denied, injunctions requiring the employer to change discriminatory policies, and prospective relief to prevent future discrimination. Attorney's fees and costs are available to prevailing plaintiffs, making it easier to find legal representation on a contingency basis. Additionally, prejudgment interest accrues on economic damages. To pursue these remedies, you must file a complaint with the California Civil Rights Department within three years of the discriminatory act. After investigation and receiving a right-to-sue notice, you have one year to file a civil lawsuit. Given the complexity of these claims and the need to preserve evidence, consulting an employment attorney promptly is crucial.

California's age discrimination protections under FEHA are generally more expansive and employee-friendly than federal protections under the Age Discrimination in Employment Act (ADEA). The most significant difference is employer coverage: FEHA applies to employers with five or more employees, while ADEA applies only to employers with 20 or more employees, extending protection to many more California workers. California provides a longer statute of limitations - three years compared to the ADEA's 300-day deadline for filing with the EEOC.

FEHA allows for unlimited compensatory and punitive damages, whereas ADEA does not permit compensatory or punitive damages (only liquidated damages equal to back pay in cases of willful violation). California uses a 'motivating factor' standard, meaning you need only prove age was a motivating factor in the adverse action, whereas federal law historically required proof that age was the 'but for' cause. California law more readily finds age-related comments and stereotypes to be evidence of discrimination. FEHA's prohibition on discriminatory job advertisements is more robust. Additionally, California provides stronger retaliation protections and has more detailed regulations addressing specific forms of age discrimination. When you have claims under both state and federal law, pursuing the California FEHA claim often provides strategic advantages including broader discovery, more favorable legal standards, and potentially greater damages.