Short answer: if you are 40 or older, California law prohibits your employer from firing you, laying you off, passing you over, cutting your pay or pushing you out because of your age. The Fair Employment and Housing Act applies to employers with five or more employees, the federal Age Discrimination in Employment Act at 20, and both cover hiring, promotion, training, discipline and termination. Age discrimination is rarely announced; it shows up as “restructuring” that eliminates older workers, comments about energy or retirement, and younger replacements. Abdi & Associates, Inc. helps individuals with age discrimination claims throughout California. The consultation is free.
The law
Government Code section 12940(a) prohibits discrimination in employment because of age against people 40 and over, and section 12941 states the Legislature’s intent that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if it has a disparate impact on older workers. The federal ADEA (29 U.S.C. section 621 and following) provides similar protection for employers with 20 or more employees. Under both laws, it is not unlawful to favor an older worker over a younger one, even when both are over 40, but choosing the younger worker because of age is unlawful even if the younger worker is also over 40.
How age discrimination happens
- layoffs and “reorganizations” that disproportionately select employees over 40, or that replace them with younger, lower-paid workers doing the same job;
- comments about retirement, energy, being “set in your ways,” “fresh blood,” “digital natives,” or fit with a young team;
- sudden negative reviews after years of good ones, followed by a performance improvement plan and termination;
- denial of training, promotion or new technology assignments to older employees;
- job postings and recruiting aimed at “recent graduates” or capping years of experience;
- pressure to retire, or repeated questions about retirement plans;
- harassment about age that creates a hostile environment.
Proving age discrimination
Direct evidence, such as a manager’s comment linking the decision to age, is rare but powerful. Most cases are proven circumstantially: the ages of who was let go and who was kept, who replaced you, your performance record before and after a new manager arrived, the employer’s explanation and whether it changed, deviations from policy, and the timing of the decision relative to your age, tenure or pension vesting. In a group layoff, the ages of those selected versus the whole workforce can show disparate impact. Under FEHA, age need only be a substantial motivating reason for the decision, not the only reason.
Severance and the release of age claims
Employers often offer older employees a severance agreement that releases age discrimination claims. Federal law requires that a release of ADEA claims be knowing and voluntary: it must be written plainly, advise you to consult a lawyer, give you 21 days to consider it (45 days in a group layoff, along with information about the ages of employees selected and not selected), and allow seven days to revoke after signing (29 U.S.C. section 626(f)). California adds a right to at least five business days to consult a lawyer before signing any release of employment claims (Government Code section 12964.5). Do not sign under a deadline before the claims have been evaluated. See our severance agreement page.
Lo que puedes recuperar
Back pay, front pay or reinstatement, lost benefits and pension value, emotional distress damages, punitive damages where the employer acted with malice or oppression, and attorney fees and costs. FEHA damages are not capped. Under the ADEA, liquidated damages equal to the back pay award are available for willful violations, but emotional distress and punitive damages are not.
Plazos
- A complaint with the California Civil Rights Department within three years of the discriminatory act (Government Code section 12960), then a lawsuit within one year of the right-to-sue notice (section 12965).
- An EEOC charge within 300 days for ADEA claims, and a lawsuit within 90 days of the EEOC notice.
- Retaliation for complaining about age discrimination is a separate claim with the same deadlines.
Qué hacer
- Write down every age-related comment with the date, speaker and witnesses, and keep your reviews, commendations and any emails about the decision at home.
- Note the ages and tenure of who was kept, who was let go and who replaced you.
- Ask for the reason for the decision in writing.
- Do not sign a severance or release until it has been reviewed; the law gives you time.
- Apply for unemployment and keep records of your job search; they support the damages claim.
- Talk to a lawyer before the deadlines run.
Cómo puede ayudarte Abdi & Associates
Abdi & Associates, Inc. helps individuals with age discrimination claims throughout California. We evaluate the evidence, review any severance agreement, preserve the deadlines and agency filings, and, where a case calls for it, work with experienced employment trial counsel we trust while staying involved in your case. We work remotely, by phone, video and secure electronic signature. The consultation is free; if the case proceeds, the fee arrangement is explained in writing, and FEHA allows the court to order the employer to pay your attorney fees. Call (888) 772-2529.
Preguntas frecuentes
I was replaced by someone who is also over 40. Do I still have a claim?
Possibly. The question is whether age was a substantial reason for the decision; a significantly younger replacement is evidence even if the replacement is over 40.
Is it legal to lay off the highest-paid employees to save money?
Government Code section 12941 recognizes that salary-based selection can be age discrimination when it disproportionately affects older workers. The employer must show a legitimate basis that is not a proxy for age.
Can my employer ask when I plan to retire?
Occasional planning questions are not illegal, but repeated questions, pressure to retire, or decisions that follow your answer are evidence of discrimination.
How long do I have to file an age discrimination claim in California?
Three years to file with the Civil Rights Department under FEHA, 300 days for an EEOC charge under the ADEA.
See also wrongful termination, employee retaliation and the employment law overview.
Sources: Cal. Gov. Code §§ 12926, 12940(a), (h), 12941, 12960, 12964.5, 12965; 29 U.S.C. §§ 621-634 (ADEA), 626(f) (Older Workers Benefit Protection Act).
Revisado por Shawn Abdi, abogado, de Abdi & Associates, Inc. Última revisión: 4 de septiembre de 2026. Publicidad de abogados. Esta página contiene información general, no constituye asesoramiento jurídico sobre su situación concreta. Los plazos legales tienen excepciones; consulte con un abogado los plazos que se aplican a su caso.