If you are 40 or older and believe your employer is treating you worse because of your age, California age discrimination law gives you broader protection than federal law does. The Fair Employment and Housing Act (FEHA) covers any employer with five or more employees, protects workers from age 40 with no upper limit, and lets you recover back pay, emotional distress damages, punitive damages, and attorney’s fees if you win. You generally have three years to file a complaint with the California Civil Rights Department, and the way you document what’s happening right now will shape what’s possible later.
Who Is Protected and Which Employers Are Covered
Under Government Code Section 12926, “age” means the chronological age of anyone who has reached their 40th birthday, with no cap at the top end.1California Legislative Information. California Code GOV 12926 A 42-year-old and an 82-year-old have the same protections.
The statute defines “employer” as any person or entity regularly employing five or more people, including the state, local governments, and cities.1California Legislative Information. California Code GOV 12926 Religious associations not organized for private profit are excluded. Both current employees and job applicants are covered, from the interview through termination.
That five-employee threshold is the big reason California workers lean on state law. The federal Age Discrimination in Employment Act only reaches employers with 20 or more employees.2U.S. Equal Employment Opportunity Commission. Fact Sheet: Age Discrimination If you work for a small company, FEHA may be your only route.
What Counts as Age Discrimination
Government Code Section 12940 makes it unlawful for an employer to refuse to hire, fire, or discriminate against any person in compensation or terms and conditions of employment because of age.3California Legislative Information. California Code GOV 12940 – Unlawful Practices That reaches almost every decision an employer makes:
- Screening out job applicants because they graduated decades ago or steering older candidates away from roles they’re qualified for.
- Paying older workers less or giving them reduced benefits for the same job younger colleagues perform.
- Passing over experienced employees for promotions or excluding them from training based on assumptions about how long they’ll stay.
- Targeting older workers in a layoff when the selection criteria aren’t tied to legitimate performance measures.
Harassment
FEHA separately prohibits age-based harassment that creates a hostile work environment. Persistent comments about being “past your prime,” jokes about retirement, or derogatory remarks about a worker’s age can qualify when they’re severe or frequent enough to interfere with the person’s ability to do the job.4California Legislative Information. California Code Government Code 12940 – Unlawful Employment Practices Supervisors and coworkers who harass can be held personally liable, whether or not the employer knew.
Neutral Policies That Hit Older Workers Harder
You don’t need a manager who says “you’re too old.” A facially neutral policy that disproportionately harms older workers can also violate the law. A requirement that all employees hold a degree earned within the last ten years, for example, would screen out experienced workers without any connection to job performance. Rules like that are only lawful if the employer proves the age-related requirement is a bona fide occupational qualification, which is an extremely high bar in most office and professional settings.3California Legislative Information. California Code GOV 12940 – Unlawful Practices
How Strong Does Your Case Need to Be
California uses a “substantial motivating factor” test. Age doesn’t have to be the only reason or even the main reason for what happened to you. It has to be more than a remote or trivial factor that actually contributed to the employer’s decision.5Justia. CACI No. 2507 – Substantial Motivating Reason Explained That’s a more plaintiff-friendly standard than the federal ADEA’s “but-for” causation, which requires proving the employer would not have acted the same way without age in the mix. In cases where the employer had both legitimate and discriminatory reasons, the difference can decide the outcome.
Most employers won’t admit to age discrimination. They’ll point to restructuring, performance issues, or a “better fit.” Your job is to show that explanation doesn’t hold up. Courts look at whether the stated rationale is so inconsistent or so weak that it couldn’t have been the real motivation. Common ways to expose a pretext include showing that younger employees with the same or worse performance records were treated more favorably, that the decision-maker can’t clearly explain when or why the decision was made, or that the employer’s own written policies weren’t followed.
Retaliation Is a Separate Violation
Filing a complaint, or even pushing back internally against discriminatory treatment, is protected activity. Under Section 12940(h), it is unlawful for an employer to discharge or otherwise discriminate against any person because they opposed practices forbidden under FEHA, filed a complaint, or assisted in any investigation or proceeding.3California Legislative Information. California Code GOV 12940 – Unlawful Practices This is a separate claim. Even if your underlying age discrimination case fails, you can still win on retaliation if the employer punished you for raising the issue.
How Long You Have to File
Deadlines are where viable claims die. California has several running at once:
- You have three years from the date of the discriminatory act to file a complaint with the California Civil Rights Department. The deadline was extended from one year by Assembly Bill 9, effective in 2020.6California Legislative Information. Assembly Bill 9
- If you want a federal ADEA claim as well, the EEOC deadline is 180 days, extended to 300 days because California has its own anti-discrimination agency.7U.S. Equal Employment Opportunity Commission. Time Limits For Filing A Charge
- Once the CRD issues a right-to-sue notice, you have one year from the date of that notice to file a civil lawsuit.8California Legislative Information. California Code GOV 12965
For ongoing harassment, the three-year clock runs from the last incident, not the first. Don’t wait anyway. Witnesses forget, emails get deleted, and the evidence you’ll need becomes harder to pull together with every passing month.
How to File With the Civil Rights Department
The California Civil Rights Department (formerly the DFEH) takes complaints through its online Cal Civil Rights System portal, or by mail. Filing the intake form starts your case and locks in your filing date.9California Civil Rights Department. Complaint Process Before you start, organize the specific facts, names, contact information for the employer and witnesses, and copies of supporting documents.
You don’t have to go through an agency investigation. California allows you to request an immediate right-to-sue notice, which lets you skip the investigation and head straight to court with your own attorney.10California Civil Rights Department. Obtain a Right to Sue Workers who already have representation often take this route. You still have to file the complaint with CRD to get the notice; you can’t go directly to court without one.
If you do use the investigation process, some cases get sent to mediation. If the agency decides not to pursue the case after investigating, it issues a right-to-sue notice and you can proceed on your own. A single filing can be dual-filed with the federal EEOC under a work-sharing agreement, preserving your rights under both FEHA and the ADEA.11U.S. Equal Employment Opportunity Commission. State and Local Programs
What You Can Recover
A successful FEHA claim can produce several categories of recovery:
- Back pay for wages and benefits lost from the discriminatory action through trial or settlement.
- Front pay for future lost earnings when going back to your old job isn’t practical.
- Compensatory damages for emotional suffering, humiliation, and similar non-economic harm.
- Punitive damages when the conduct was especially egregious. California does not cap punitive damages under FEHA.
- Attorney’s fees and costs, which the court can order the employer to pay if you prevail.
Under the federal ADEA, a willful violation triggers liquidated damages equal to the back pay award, effectively doubling that portion of the recovery.12Ninth Circuit District & Bankruptcy Courts. Age Discrimination – Damages – Willful Discrimination – Liquidated Damages The ADEA does not allow compensatory or punitive damages. That’s why many California plaintiffs pursue state and federal claims together, picking up the strongest remedy from each.
Keep in mind that back pay is treated as wages for federal income tax purposes, subject to income tax withholding and payroll taxes in the year you receive it.13Internal Revenue Service. Reporting Back Pay and Special Wage Payments to the Social Security Administration Emotional distress damages are generally taxable too, because age discrimination claims don’t involve physical injury. Talk to a tax professional before signing a settlement.
What to Document Starting Now
The workers who do best in these claims started documenting before they ever called a lawyer. Keep a chronological log with specific dates, times, and descriptions of every incident. Write down exact quotes when someone makes an age-related comment, and note who else was there. “My manager said something rude” is vague. “On March 12, during the 2 p.m. team meeting, John Chen said ‘we need younger blood on this project’ in front of Sarah Reyes and Mark Tran” is evidence.
Under Labor Code Section 1198.5, you have the right to inspect and get a copy of your personnel records by submitting a written request. Your employer has to provide access within 30 calendar days.14California Legislative Information. California Code Labor Code 1198.5 – Personnel Records Ask for them early. Performance reviews are especially telling when ratings suddenly drop around the same time age-related comments start.
Save every email, memo, and HR communication. If you raised concerns internally, the company’s response creates a paper trail. Keep copies somewhere outside your work computer. You may lose access to employer systems without warning.