Age Discrimination in California: Employee Rights - McLellan Law Group

Q: What if my employer says I was fired for performance, not age?

Employers often cite performance issues as a defense. If the performance concerns are pretextual, you may still have a claim. Look at whether standards were applied consistently and whether younger employees with similar records were treated differently.

Q: How long do I have to file a claim?

You have three years from the discriminatory act to file with the CRD under FEHA. After receiving a right-to-sue notice, you have one year to file a civil lawsuit. For a federal ADEA claim, the EEOC deadline is 300 days in California.

Claire Melehani • November 13, 2026

Age Discrimination in California: Employee Rights

Employment Law | Published October 31, 2026 | McLellan Law Group, LLP

Age Discrimination Against California Employees: Your Rights Under FEHA

California offers some of the strongest age discrimination protections in the country. Here is what employees over 40 need to know.

Bottom Line: California's Fair Employment and Housing Act (FEHA) protects employees aged 40 and older from age-based discrimination. FEHA covers employers with as few as five employees, goes further than federal law in several important ways, and provides remedies that include lost wages, emotional distress damages, and attorney fees.

What Is Age Discrimination Under California Law?

Age discrimination occurs when an employer makes an adverse employment decision based on an employee's age. Under FEHA ( Gov. Code, sec. 12940), it is unlawful for an employer to discriminate against a person aged 40 or older in hiring, firing, promotion, compensation, or any other term or condition of employment.

Age discrimination can take many forms:

Termination, layoff, or forced retirement based on age
Passing over qualified older workers for promotion in favor of younger employees
Reducing an older employee's hours, responsibilities, or compensation
Harassment, including age-related comments, jokes, or pressure to retire
Applying neutral policies that disproportionately affect older workers without business justification
Denying training opportunities or professional development based on age

How FEHA Differs from Federal Law (ADEA)

California employees benefit from FEHA protections that are broader than the federal Age Discrimination in Employment Act (ADEA) in several important ways:

Feature	California FEHA	Federal ADEA
Employer size	5 or more employees	20 or more employees
Protected age	40 and older	40 and older
Disparate impact claims	Available	Available, but harder to prove
Emotional distress damages	Available	Not available
Punitive damages	Available	Not available
Administrative filing deadline	3 years from the discriminatory act (CRD)	300 days (EEOC, in deferral states)
Harassment claims	Employer liable if knew or should have known	More limited framework

Key difference: FEHA applies to employers with just 5 employees. Many Silicon Valley startups and small businesses that fall below the ADEA's 20-employee threshold are still subject to California's age discrimination protections.

Common Signs of Age Discrimination in the Workplace

Age discrimination is not always stated openly. It often appears through patterns of behavior or decision-making. Warning signs include:

Comments about being "overqualified," "not a cultural fit," or questions about retirement plans
Disproportionate layoffs affecting older workers while younger employees are retained
Job postings that use terms like "digital native," "recent graduate," or "high energy" as proxies for younger applicants
Performance evaluations that suddenly decline after years of positive reviews, particularly when a new, younger manager arrives
Reassignment to less desirable duties or exclusion from key projects
Hiring patterns that consistently favor younger applicants for positions older workers are qualified for

How to File an Age Discrimination Complaint in California

Step 1: File with the Civil Rights Department (CRD)

Before filing a lawsuit under FEHA, you must first file an administrative complaint with the California Civil Rights Department (CRD, formerly the DFEH). You have three years from the date of the discriminatory act to file. You can file online at calcivilrights.ca.gov.

Step 2: Obtain a Right-to-Sue Notice

You can request an immediate right-to-sue notice from the CRD, which allows you to proceed directly to court without waiting for the CRD to investigate. Alternatively, the CRD may choose to investigate your complaint and attempt to resolve it through mediation or other means.

Step 3: File a Lawsuit

Once you receive a right-to-sue notice, you have one year to file a civil lawsuit in California Superior Court. This deadline is strict, and missing it can bar your claim entirely.

Dual filing option: You may also file a charge with the federal EEOC if your employer has 20 or more employees. The CRD and EEOC have a worksharing agreement, so a complaint filed with one agency can be cross-filed with the other. An attorney can advise on the best strategy for your specific situation.

What Damages Are Available?

California employees who prove age discrimination may recover:

Lost wages and benefits(back pay and front pay)
Emotional distress damages for the psychological impact of the discrimination
Punitive damages if the employer acted with malice, oppression, or fraud
Attorney fees and costs
Injunctive relief, such as reinstatement or changes to employer policies

There is no cap on compensatory or punitive damages under FEHA, unlike some federal claims. This makes California one of the most favorable jurisdictions for age discrimination cases.

Age Discrimination in Layoffs and Restructuring

Layoffs and restructurings are common in the technology and financial sectors. When these events disproportionately affect older workers, they may constitute age discrimination even if the employer claims business justification.

Things to watch for after a layoff:

Were older employees disproportionately selected for termination compared to younger workers with similar roles and performance?
Were younger employees hired or retained for the same or similar positions?
Did the employer use subjective criteria (like "adaptability" or "innovation mindset") that could serve as proxies for age?
Were older workers offered early retirement packages or incentives to leave?

Older Workers Benefit Protection Act (OWBPA)

If your employer asks you to sign a severance agreement that includes a release of age discrimination claims, the federal Older Workers Benefit Protection Act requires specific protections. The waiver must be written in plain language, specifically reference claims under the ADEA, provide at least 21 days to consider the agreement (45 days in a group layoff), and allow 7 days to revoke after signing. A release that does not meet these requirements may be unenforceable. (Needs verification: confirm current OWBPA requirements at 29 U.S.C. sec. 626(f).)

Frequently Asked Questions

Can my employer force me to retire?

Generally, no. Mandatory retirement is illegal under both FEHA and the ADEA, with very limited exceptions for certain executives and high-level policymakers. If your employer is pressuring you to retire, that pressure may itself constitute age discrimination or harassment.

What if my employer says I was fired for performance, not age?

Employers often cite performance issues as a defense. However, if the performance concerns are pretextual (fabricated or exaggerated to cover age-based motives), you may still have a claim. Look at whether the performance standards were applied consistently, whether younger employees with similar records were treated differently, and whether the negative reviews appeared suddenly.

Does age discrimination apply to job applicants?

Yes. FEHA prohibits age discrimination in hiring as well as employment. If you were denied a job because of your age, you can file a complaint with the CRD. Proving hiring discrimination may require evidence such as interview notes, the age of the person ultimately hired, or a pattern of the employer hiring younger applicants.

How long do I have to file a claim?

You have three years from the date of the discriminatory act to file an administrative complaint with the CRD under FEHA. After receiving a right-to-sue notice, you have one year to file a civil lawsuit. For a federal ADEA claim, the deadline to file with the EEOC is 300 days in California. (Needs verification: confirm the current CRD filing deadline, as recent legislative changes may apply.)

Can I be retaliated against for reporting age discrimination?

No. FEHA prohibits retaliation against employees who file complaints, participate in investigations, or oppose discriminatory practices. ( Gov. Code, sec. 12940, subd. (h).) Retaliation can include termination, demotion, reduction in hours, or any other adverse employment action.

Facing Age Discrimination at Work?

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About the Authors

Claire Melehani, Esq.

Founding Partner

Founding partner at McLellan Law Group with extensive experience representing employees in wrongful termination, discrimination, and retaliation matters throughout Silicon Valley.

Steven McLellan, Esq.