If you’re 40 or older and believe your employer treated you worse because of your age, California age discrimination law gives you more protection than federal law does. The Fair Employment and Housing Act (FEHA) covers any employer with five or more employees, sets a three-year window to file a complaint with the state, and allows recovery that can include back pay, emotional distress damages, punitive damages, and attorney’s fees. Federal law reaches only employers with 20 or more workers, so many Californians have a state claim even when the federal Age Discrimination in Employment Act (ADEA) doesn’t apply to them at all.
Who Is Protected
Government Code Section 12926 defines “age” under FEHA as the chronological age of anyone who has reached their 40th birthday, with no upper limit.1California Legislative Information. California Code GOV 12926 Whether you’re 42 or 82, the same rules apply. The statute defines “employer” as any person or entity regularly employing five or more people, and includes state and local government. Religious associations not organized for private profit are excluded. Both current employees and job applicants are covered at every stage, from the interview onward.
Why the FEHA-ADEA Gap Matters
The federal ADEA applies only to employers with 20 or more employees.2U.S. Equal Employment Opportunity Commission. Fact Sheet: Age Discrimination If you work for a business with eight or fifteen people, the ADEA won’t help you but FEHA will. The proof standard is also more favorable in state court. Federal ADEA claims require “but-for” causation: you have to show the employer would not have acted the way it did if age weren’t a factor. California uses a “substantial motivating factor” test, meaning age doesn’t have to be the only or main reason for the decision, just more than a remote or trivial factor that actually contributed to what happened.3Justia. CACI No. 2507 – Substantial Motivating Reason Explained That difference can decide cases where the employer had a mix of legitimate and improper reasons.
Federal law still matters even when you have a state claim. A willful ADEA violation triggers liquidated damages equal to your back pay award, effectively doubling that portion of the recovery.4Ninth Circuit District & Bankruptcy Courts. Age Discrimination – Damages – Willful Discrimination – Liquidated Damages The ADEA does not allow compensatory or punitive damages, though, and FEHA does. Many workers pursue both.
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.5California Legislative Information. California Code GOV 12940 – Unlawful Practices In everyday terms, that reaches:
- Screening out applicants because they graduated decades ago, or steering older candidates away from jobs they’re qualified for.
- Paying older workers less, or giving them reduced benefits, for the same work as younger colleagues.
- Passing over experienced employees for promotions or excluding them from training based on assumptions about how long they’ll stay.
- Targeting older employees 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 age qualify when they’re severe or frequent enough to interfere with your ability to do the job. Individual supervisors and coworkers who engage in harassment can be held personally liable, whether or not the employer knew about the conduct.
Neutral Policies That Hit Older Workers Harder
Nobody has to say “you’re too old” for the law to apply. Facially neutral policies that disproportionately harm older workers can also violate FEHA. A rule requiring every employee to hold a degree earned in the last ten years, for example, screens out experienced workers without any real connection to job performance. Policies like that are only legal if the employer proves the age-related requirement is a bona fide occupational qualification, which is a very high bar outside of narrow contexts.
Retaliation Is Its Own Claim
Filing a complaint or pushing back internally against discriminatory treatment is protected activity. Section 12940(h) makes it 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 an investigation or proceeding.5California Legislative Information. California Code GOV 12940 – Unlawful Practices A retaliation claim stands on its own. Even if you can’t prove the underlying age discrimination, you can still win a retaliation case if the employer punished you for raising it.
Filing Deadlines
Missing a deadline is the fastest way to lose a viable claim, and several run at the same time:
- You have three years from the date of the discriminatory act to file a complaint with the California Civil Rights Department (CRD). Assembly Bill 9 extended that window from one year, effective in 2020.6California Legislative Information. Assembly Bill 9
- A federal ADEA charge with the EEOC must generally be filed within 180 days, but because California has its own anti-discrimination agency, that deadline extends to 300 days.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. Witnesses forget, emails get deleted, and evidence becomes harder to reconstruct every month.
How to File a Complaint With the CRD
The California Civil Rights Department, formerly the DFEH, handles workplace discrimination complaints through the online Cal Civil Rights System. You submit an intake form through the portal or mail a printed version. Filing the intake form starts your case and preserves your filing date.9California Civil Rights Department. Complaint Process Have your evidence organized before you begin. The agency asks for specific facts, names and contact information for the employer and any witnesses, and copies of supporting documents.
You don’t have to use the investigation process. California lets you request an immediate right-to-sue notice, which skips the agency investigation and takes you straight to court with your own attorney.10California Civil Rights Department. Obtain a Right to Sue Workers who already have counsel often go this route. Either way, you still have to file with the CRD first. You cannot go directly to court without a right-to-sue notice.
If you do use the investigation process, some cases are directed to mediation. If the agency decides not to pursue the case, it issues a right-to-sue notice so you can proceed on your own.
The CRD and the EEOC have a work-sharing agreement, so a single filing can satisfy both state and federal requirements.11U.S. Equal Employment Opportunity Commission. State and Local Programs The agencies decide between themselves which will investigate, and your rights under both FEHA and the ADEA are preserved.
Evidence That Actually Helps Your Case
The workers who do best started documenting before they ever spoke to an attorney. Keep a chronological log with dates, times, and specific descriptions of every incident. Record exact quotes when someone makes an age-related comment, and note who else was in the room. “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 receive a copy of your personnel records by written request, and your employer must provide access within 30 calendar days.12California Legislative Information. California Code Labor Code 1198.5 – Personnel Records Request them early. Performance reviews are especially telling when someone’s ratings drop suddenly around the time age-related comments started.
Save emails, memos, and any written communication with HR, and keep copies somewhere other than your work computer. You can lose access to company systems without warning. Most employers won’t admit to age discrimination; they’ll offer a business reason like restructuring, performance, or “fit.” Showing that the stated reason is inconsistent, that younger employees with the same or worse records were treated more favorably, or that the company didn’t follow its own policies is how you undercut that explanation.
What You Can Recover
A successful FEHA age discrimination claim can produce several categories of recovery:
- Back pay: wages and benefits lost from the date of the discriminatory action through trial or settlement.
- Front pay: future lost earnings when returning to your former job isn’t practical.
- Compensatory damages for emotional suffering, humiliation, and similar non-economic harm.
- Punitive damages when the employer’s conduct was especially egregious. California does not cap punitive damages under FEHA.
- Attorney’s fees and costs if you prevail.
Under the ADEA, a willful violation adds liquidated damages equal to the back pay award.4Ninth Circuit District & Bankruptcy Courts. Age Discrimination – Damages – Willful Discrimination – Liquidated Damages The ADEA does not allow compensatory or punitive damages, which is one reason many California plaintiffs bring parallel state and federal claims.
Taxes on Your Recovery
Not every dollar reaches your pocket. Back pay is treated as wages for federal income tax purposes and is 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 Your employer reports it on a W-2, and if the back pay covers several years, the full amount is taxed in the year of payment, which can push you into a higher bracket.
Emotional distress damages in a discrimination case are generally taxable, because the underlying claim doesn’t involve physical injury or physical sickness. The exception is narrow and rarely applies to age discrimination cases. How attorney’s fees are treated depends on how the settlement is structured, so speak with a tax professional before signing anything.