California’s Fair Employment and Housing Act (FEHA) is the state’s age discrimination law, and it protects workers who are 40 or older from being treated worse at work because of their age. It applies to employers with five or more employees, covers every stage of the job from hiring through termination, and lets you recover lost wages, emotional distress damages, and in some cases punitive damages. Before you can sue, you have to file a complaint with the California Civil Rights Department (CRD).
Who the Law Protects
FEHA defines “age” as the chronological age of any person who has reached their 40th birthday.1California Legislative Information. California Government Code 12926 There is no upper limit. A 75-year-old gets the same protection as a 42-year-old. Workers under 40 are not covered by the age provisions, though FEHA’s other categories (race, sex, disability, and others) still apply.
The law reaches any employer that regularly has five or more people on payroll, full-time or part-time.1California Legislative Information. California Government Code 12926 That includes private companies, state and local government agencies, and anyone acting as their agent. Labor unions cannot exclude members because of age, and employment agencies cannot refuse to refer applicants who are 40 or older.2California Legislative Information. California Government Code 12940 – Unlawful Practices, Generally Religious associations and corporations not organized for private profit are the only employers carved out.
The federal Age Discrimination in Employment Act uses the same age-40 floor but only applies to employers with 20 or more employees.3U.S. Equal Employment Opportunity Commission. Age Discrimination in Employment Act of 1967 California’s five-employee threshold sweeps in roughly four times as many businesses, and FEHA allows emotional distress and punitive damages that federal law does not. If you work for a larger employer, both laws apply at once.
What Counts as Age Discrimination at Work
FEHA bars age-based discrimination across the whole employment relationship: recruiting, hiring, training, pay, promotion, discipline, benefits, work assignments, and termination.2California Legislative Information. California Government Code 12940 – Unlawful Practices, Generally It shows up in a few recognizable ways.
Being Singled Out Because of Your Age
Intentional discrimination is sometimes obvious, like a manager writing that the department “needs younger blood.” More often it surfaces as a pattern. An employee with strong reviews for a decade starts getting written up after turning 55. A qualified internal candidate is passed over for a promotion that goes to someone 20 years younger with less experience. These facts do not prove discrimination on their own, but they build the kind of pattern that forces an employer to explain itself.
Policies That Look Neutral but Hit Older Workers Harder
A company policy that looks neutral on paper can still violate FEHA if it disproportionately harms workers over 40 without a legitimate business justification. A restructuring plan that eliminates the highest-salaried positions is a common example: because salary tends to track tenure and age, the layoffs land on older workers. If the employer cannot show the policy was necessary and that no less discriminatory alternative was available, it is unlawful regardless of anyone’s intent.
Age-Based Harassment
FEHA separately prohibits age-based harassment that creates a hostile work environment.2California Legislative Information. California Government Code 12940 – Unlawful Practices, Generally Repeated comments about when you plan to retire, “jokes” about being too old to learn new software, or age-based nicknames can cross the line. A single stray remark usually is not enough; the conduct generally has to be severe or pervasive enough that a reasonable person would find the workplace intimidating or abusive. An employer is automatically liable for harassment by a supervisor, and liable for coworker or non-employee harassment when management knew or should have known and failed to act.
Retaliation for Speaking Up
It is separately unlawful to punish a worker for opposing age discrimination or taking part in a complaint.2California Legislative Information. California Government Code 12940 – Unlawful Practices, Generally Protected activity includes filing a CRD complaint, testifying in a coworker’s case, reporting discrimination to a supervisor, or refusing to carry out an instruction that would discriminate.4U.S. Equal Employment Opportunity Commission. Facts About Retaliation
Retaliation is not limited to being fired. A sudden transfer to a worse shift, an unjustified bad review, heavier scrutiny of small mistakes, or exclusion from meetings you used to attend can all qualify. The test is whether the employer’s action would discourage a reasonable person from making or supporting a complaint. Retaliation is a separate claim on top of the underlying discrimination claim, and it sometimes succeeds even when the original claim does not.
When Age Can Legally Factor In
An employer can set an age requirement only when age is a genuine job-related necessity, called a bona fide occupational qualification. These are narrow and almost always tied to safety rules set by federal regulation. Vague reasons like needing “more energy” or a better “cultural fit” at a younger company are not qualifications; they are the kind of pretext that age discrimination cases are built around.
Severance Agreements That Ask You to Waive Age Claims
Many severance offers include a release asking you to give up your right to sue for age discrimination. The federal Older Workers Benefit Protection Act sets strict rules for these waivers, and an agreement that falls short is unenforceable.5Office of the Law Revision Counsel. 29 USC 626 – Recordkeeping, Investigation, and Enforcement A valid waiver of age claims must meet every one of these conditions:6U.S. Equal Employment Opportunity Commission. Q and A – Understanding Waivers of Discrimination Claims in Employee Severance Agreements
- Written in plain language the average eligible employee can understand.
- Specific reference to rights under the ADEA; a generic release of “all claims” is not enough.
- No waiver of claims based on conduct that has not happened yet.
- New consideration, meaning something beyond what you were already owed under company policy.
- Written advice to consult an attorney before signing.
- At least 21 days to consider the agreement, extended to 45 days for group layoffs or exit incentive programs.
- A seven-day window to revoke after you sign; the release is not enforceable until that window closes.
If an employer rushed you through signing or left any of these pieces out, there is a strong argument the waiver is void and your discrimination claim is still live.
How to File a Complaint with CRD
Before you can sue in California court, you must file a complaint with the Civil Rights Department. This is called exhaustion of administrative remedies, and skipping it will get your case dismissed.7California Civil Rights Department. Complaint Process
The fastest route is CRD’s online California Civil Rights System portal, though complaints are also accepted by mail and email.8California Civil Rights Department. How to File a Complaint You will need the employer’s legal name as it appears on your W-2, the worksite address, and the number of employees, along with a description of what happened and who was involved.9Cornell Law Institute. Cal. Code Regs. Tit. 2, 10007 – Intake You can start the process without every detail and add information later.
Many workers skip the agency investigation by requesting an immediate right-to-sue notice. CRD closes the case without investigating and issues the notice, which clears the way for a private lawsuit.7California Civil Rights Department. Complaint Process This is the usual path when you already have an attorney and want to go straight to court. If you do not request immediate right-to-sue, CRD may investigate, and if it finds reasonable cause it may file suit on your behalf.
Deadlines You Cannot Miss
Two deadlines control your case, and missing either one ends it.
- You have three years from the date of the last discriminatory act to file your intake form with CRD.7California Civil Rights Department. Complaint Process
- Once CRD issues your right-to-sue notice, you have one year from that date to file a civil lawsuit.10California Legislative Information. California Government Code 12965
If you also want to pursue a federal ADEA claim, the federal timeline is far shorter. An EEOC charge generally has to be filed within 300 days of the discriminatory act when a state agency like CRD exists. You can dual-file with both agencies, and doing so early keeps both options open.
What You Can Recover
A successful FEHA age discrimination claim can produce several kinds of relief, and the available damages are broader than what federal law allows.
Back pay covers the wages and benefits you lost between the discriminatory act and the resolution of the case. If you were fired, that means your full salary and benefits from the termination date through trial. Front pay covers future lost earnings when going back to the old job is not realistic, such as when the relationship is too damaged or the position no longer exists.11Ninth Circuit District and Bankruptcy Courts. 11.13 Age Discrimination – Damages – Back Pay – Mitigation You do have to look for comparable work; a court will reduce your award by what you earned or reasonably could have earned during that period.
Unlike the federal ADEA, FEHA allows recovery for emotional distress. Anxiety, depression, sleep disruption, and the humiliation of being pushed out of a career because of your age are all compensable, and California puts no statutory cap on these damages. Punitive damages are available when the employer’s conduct went beyond ordinary discrimination into something malicious or reckless, proven by clear and convincing evidence of oppression, fraud, or malice.
Courts can also order reinstatement to your old job or the promotion you were denied, and can require the employer to change its policies or run anti-discrimination training. A prevailing plaintiff can recover reasonable attorney’s fees and expert witness costs, while a losing plaintiff only owes the employer’s fees if the court finds the lawsuit was frivolous.10California Legislative Information. California Government Code 12965 That one-way fee shifting is what makes it financially viable for attorneys to take age discrimination cases on contingency.
Evidence to Start Gathering Now
The evidence you collect before filing usually decides whether your case holds up. Start the moment something feels off, not after you have been terminated.
Performance reviews are the backbone of most age discrimination cases. If your evaluations were consistently positive and then dropped sharply after a management change or an age-related comment, that contrast tells a story. Save copies of every review, including informal feedback in emails or chat messages. Your personnel file may contain documents you have never seen, and California law gives you the right to inspect it.
Keep a personal log of incidents as they happen. Record the date, what was said or done, who was present, and how it affected your work. Entries written in real time carry far more weight than a summary pulled from memory months later. Note the names of coworkers who witnessed discriminatory comments.
Pay attention to how younger coworkers in similar roles are treated. If a 35-year-old makes the same mistake you did and gets a verbal warning while you get written up, that disparity matters. Organizational charts, hiring announcements, and internal job postings can reveal a pattern of replacing older workers with younger ones. No single piece proves discrimination; assembled together, they build the circumstantial case most employment lawsuits rely on.