Age Discrimination Lawyer in California

Age Discrimination in California

Any employee or job applicant over 40 cannot receive less favorable treatment just because of his or her age.[1] Examples of prohibited activities include:

  • Firing someone when he or she reaches a certain age
  • Hiring someone just because they are younger even if the older person is more qualified
  • Promoting others who are younger while deliberately avoiding older workers[2]


Age discrimination is prohibited in the state of California, except in certain circumstances. Two bodies of law regulate this discrimination: Federal Age Discrimination in Employment Act (ADEA)[3] and California’s Fair Employment and Housing Act (FEHA).[4] The ADEA applies when there are at least 20 employees and FEHA applies when there are at least five. If the two laws differ on any specific topic, the court will apply the law which protects the employee the most, usually FEHA.


What to show to prove age discrimination?

In order for an employee to bring a successful claim against the employer for age discrimination, he or she must show four things:

  • Employer falls under one of the two statutes above based on the number of employees[5]

    • Employer must have regularly employed five or more people daily for a 20-week period.[6] The other employees do not have to be full-time and do not have to work at the same sight as the employee.[7]
    • The State of California is considered and employer and can be sued for age discrimination[8]
    • Religious organizations are not considered employers usually, unless there is a section of the organizations that is considered for profit.[9]
    • Supervisors and other coworkers are usually not liable nor can they be directly sued.[10]
  • Employee was over 40[11]
  • Employee was adversely affected by employment action[12] and

  • Employer took the specific action because of the employee’s age.[13]


Who is eligible to bring a suit against an employer?

Employees are not the only people who can bring a suit for age discrimination. Job applicants can as well as long as he or she is one who filed an application with the employer.[14] Further, if the qualified applicant was not allowed to apply based on his or her age, they would also be allowed to sue. However, an employee’s family member cannot sue on behalf of the employee; it must be the employee himself who brings the case. Temporary employees are treated similarly to employees in this case as well.


Independent contractors, those who work for themselves and have control over his or her own work, are not protected under either of California’s discrimination laws. However, they are protected from age-based harassment in California.[15]


Unpaid interns are not only not being paid, but also, not receiving very many benefits or protections of the law.[16] However, FEHA extended its protection to unpaid interns recently and a claim may be brought for age discrimination by them as well.[17]


When can age discrimination occur legally?

There are certain times where an employee is allowed to discriminate based off age given the specifics of the job. This is called a bona fide occupational qualification (BFOQ).[18] It occurs when choosing applicants based off certain ages because of safety, efficiency, and the employer’s operations would be undermined.[19] An example of a valid BFOQ would be age limits for pilots or certain types of physicians may be forced to retire.


Age discrimination is illegally in California and employees are protected under two different laws. However, there are certain times that age discrimination is allowed given the requirements of a job, the safety measures needed, or the employer’s business itself would be affected. If you feel you have a case, it is important to reach out to a lawyer to receive the information you need and to have any further questions answered.


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Legal Reference

[1] 29 U.S.C. Section 623

[2] 29 U.S.C. Section 623

[3] 29 U.S.C. §§ 621–634

[4] Gov’t Code, § 12900

[5] Gov. Code, § 12926, subd. (b)

[6] Cal. Code of Regs., tit. 2, Section 11008

[7] Gov. Code, § 12926, subd. (d)

[8] Gov. Code, § 12926, subd. (d)

[9] Gov. Code, § 12926, subd. (d)

[10] Gov. Code, § 12926, subd. (d)

[11] Gov. Code, § 12926, subd. (b)

[12] Gov. Code, § 12926, subd. (b)

[13] Gov. Code, § 12926, subd. (b)

[14] Gov. Code, § 12940

[15] Gov. Code Section 12940

[16] Gov. Code Section 12940

[17] Gov. Code Section 12940

[18] Gov. Code Section 12940

[19] Gov. Code Section 12940

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