California age discrimination lawyers

Who is protected

California's Fair Employment and Housing Act (Gov. Code §§ 12940, 12941) protects employees and applicants 40 and older at employers with five or more employees. The federal Age Discrimination in Employment Act (ADEA) offers similar protection at employers with 20 or more employees.

California goes further than federal law in important ways:

• Lower causation standard. Under FEHA, age only needs to be a substantial motivating reason for the decision. Under the ADEA, the employee must show age was the "but-for" cause.
• No damages cap and the availability of emotional distress and punitive damages, which the ADEA doesn't allow.
• Salary and "overqualified" defenses are limited. Gov. Code § 12941 says that using salary as a basis for selecting employees for layoff, or rejecting a candidate as "overqualified," can be evidence of age discrimination when it disproportionately affects older workers.

What age discrimination looks like

• Being selected for a layoff while younger, less experienced employees keep their jobs, or seeing your duties handed to a younger replacement
• Comments about "new blood," "fresh energy," "digital natives," being "set in your ways," or asking when you plan to retire
• Being excluded from training, new technology, or projects offered to younger coworkers
• A sudden run of negative reviews after years of strong ones
• Pressure to accept early retirement or a buyout
• Job postings or recruiting aimed at "recent graduates" or a narrow years-of-experience window
• Being rejected as "overqualified" or "too expensive"
• Restructuring that eliminates mostly older workers' positions

Layoffs and reductions in force

Many age cases arise from layoffs, because a "reduction in force" can be used to clear out higher-paid, longer-tenured employees. Important questions include: Who chose which positions to cut, and what criteria did they use? What were the ages of those laid off compared with those kept? Was your work actually eliminated, or reassigned to someone younger? Were you given a fair chance to apply for open positions?

Employers with 75 or more employees at a California location must generally give 60 days' notice before a mass layoff or closure under the California WARN Act (Labor Code § 1400 et seq.), or pay up to 60 days of wages and benefits in lieu of notice.

Severance agreements for workers 40 and older

The federal Older Workers Benefit Protection Act (OWBPA) requires that a release of age discrimination claims be knowing and voluntary. Among other requirements, the agreement must:

• Be written in plain language and specifically mention ADEA claims
• Advise you in writing to consult a lawyer
• Give you at least 21 days to consider it (45 days in a group layoff)
• Give you 7 days to revoke after signing
• In a group layoff, disclose the job titles and ages of those selected and not selected

That age data is often valuable evidence. Have a lawyer review it before you sign.

Building the case

Strong age cases usually combine several types of evidence: who replaced you and how old they are; the ages of people laid off versus retained; age-related comments; your performance history; and inconsistencies in the employer's explanation. An attorney can request workforce data and decision-making documents during discovery.

What you can recover

• Back pay and front pay, which can be significant for workers whose re-employment prospects are harmed by age bias
• Lost retirement contributions, pension accrual, and health benefits
• Emotional distress and punitive damages under FEHA
• Liquidated (double) damages for willful violations under the ADEA
• Attorney fees and costs

Deadlines

• FEHA: three years to file with the California Civil Rights Department, then one year after the right-to-sue notice.
• ADEA: 300 days to file an EEOC charge, then 90 days after the EEOC's notice to sue.

What to do if you suspect age discrimination

1. Write down who replaced you or took over your duties, and their approximate age and experience.
2. Record age-related remarks with dates, speakers, and witnesses, including comments about retirement, energy, technology, or "fit."
3. Keep the layoff paperwork, including any OWBPA disclosure listing ages and job titles of those selected and retained.
4. Use your full review period. You have at least 21 days (45 in a group layoff) to consider a severance release. Use that time to get advice.
5. Save evidence of strong performance from before the decision.
6. File for unemployment, and keep records of your job search, which matter for calculating lost earnings.

How your case works with us

Most employees have never hired a lawyer before. Here's what working with us looks like, from the first call to resolution.

1. Free, confidential consultation. We listen to what happened, review any documents you have, and tell you honestly whether you have a claim, which laws apply, and which deadlines matter.
2. Investigation. We gather your personnel file, payroll records, and communications, identify witnesses, and request records your employer is legally required to provide.
3. Agency filings, when required. For claims under FEHA, we file with the California Civil Rights Department and obtain a right-to-sue notice so your case can proceed in court.
4. Demand and negotiation. Many cases resolve through a demand letter, early negotiation, or mediation, without a trial.
5. Litigation, if needed. If your employer won't do right by you, we file suit and are prepared to take the case through discovery and trial or arbitration.

Fees. Most employment cases are handled on a contingency basis. You pay no attorney fees unless we recover money for you, and many California employment laws require the employer to pay your attorney fees if you win.