This page discusses California’s workplace age discrimination law. The goal of this page is to help individuals decide whether or not they should contact an employment lawyer. While this page discusses CA’s age discrimination laws, it is not a substitute for speaking with a lawyer. We highly recommend that you contact an employment lawyer if you feel your termination was due to your age. If you’re looking to learn about another type of discrimination, visit our main discrimination page.
This page covers the following subjects:
- The basics of CA’s age discrimination law
- A comparison of the Age Discrimination in Employment Act and the California Fair Employment and Housing Act
- What can you recover in an age discrimination lawsuit?
- Average verdicts and settlements in age discrimination cases
- The statute of limitations
- How much does an age discrimination lawyer cost?
- Consulting with and hiring an age discrimination lawyer
- Severance packages for employees over the age of 40
Age Discrimination Basics
Simply put, CA law says that corporations cannot refuse to hire or terminate a person because of their age. This law can be found in the California Fair Employment & Housing Act (“FEHA”).
Despite this rule there are several employment practices which, in and of themselves, do not constitute an unlawful employment practice. This includes promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities. In order to show that these activities are unlawful, you must affirmatively prove that age was a motivating factor in the refusal to hire.
Under FEHA, California employees are afforded more protections than with the federal law, the Age Discrimination in Employment Act (“ADEA”), but one bright line shared by both laws is that the individual must be over the age of 40 years old. FEHA is also more powerful than the ADEA due to the lack of statutory limits on awards. This is but one example of why California is considered one of, if not the, most worker-friendly states.
This law overlaps with CA’s wrongful termination law. A termination on the basis of age is against public policy.
Federal Age Discrimination in Employment Act vs. the California Fair Employment and Housing Act
As mentioned above, the FEHA provides broader protections to employees than the ADEA, but there are areas in which they align as well. Some examples are as follows:
- The ADEA requires a minimum of 20 full-time or regular part-time employees. The FEHA, on the other hand, applies to employers with 5 or more employees.
- The FEHA is generally preferred by plaintiffs because it allows for damages that the ADEA does not, like emotional distress and punitive. Also, there are no statutory limit on awards.
- The ADEA, however, may be preferred by plaintiffs who are highly compensated because of the potential for liquidated (double) damages.
- The FEHA allows for an individual to challenge practices that have a disproportionately adverse effect on those over the age of 40. This is referred to as “disparate impact theory.” The ADEA is unclear on the usage of this as an employer is not liable if the practice or policy is based on reasonable factors other than age.
- The ADEA does not allow comments unrelated to the issue at hand to be considered, and are deemed irrelevant. The FEHA says that such remarks can be used to show with other evidence to show that the discriminatory environment may exist and deserves a trial.
What Can You Recover in an Age Discrimination Lawsuit?
If you win your case at trial, you can recover two main types of damages. First the wages you have earned had you not been discriminated against (“lost income”). For example, if you were earning $40,000 per year, but then got terminated because of your age, and remained unemployed for a year despite all of your efforts, you can recover $40,000. Second, you may also recover for the pain and suffering caused by the age discrimination (lawyers call this “emotional distress”). Emotional distress damages include pay for anxiety, depression, fear, stress, and mental suffering. The jury will try to compensate for both past and future emotional distress.
Addionally, you may win attorney’s fees and punitive damages. If you win you may recover your “attorney’s fees” as well. This is based on the hours that your attorney worked and his hourly rate. Since many age discrimination claims have small economic and emotional distress damages, California’s lawmakers inserted this fee statute to incentivized employment lawyers to take low damage discrimination cases.
Finally, in rare cases you may recover punitive damages if you prove the corporation truly engaged in reprehensible behavior. Punitive damages are awarded to serve as a deterrent to other corporations from engaging in such behavior again.
Average Verdicts and Settlements in Age Discrimination Cases
Most discrimination cases, not just age discrimination, settle. All settlements are subject to confidentiality provisions, so there is very little data to calculate an average. From our experience, the majority of age discrimination cases settle for under $50,000. But these types of cases often have significant value because the discriminated employee may never find another job again. Unfortunately, it is very difficult to find a job when you are over the age of 50.
Since every case is different you should not set expectations that you will earn a specific amount from your lawsuit. Sometimes there are very good reasons for a good case to settle for small amount. Consult with a lawyer if you want learn more about the value of your case.
Statute of Limitations
Generally, you have one year from your termination to obtain a right-to-sue letter from the DFEH. Your attorney will usually obtain this right-to-sue letter for you, but if you have already received one be sure to let your attorney know. You have one year from the acquisition date to file your case in court or arbitration.
The statute of limitations, however, may be as short as six months for employees of public entities. We highly recommend that you consult with an labor lawyer as soon as possible.
How Much Does an Age Discrimination Lawyer Cost?
Age discrimination lawyers are paid with a contingency fee. This means that the lawyer is paid only if he or she successfully recovers monetary damages for the client. The lawyer will be paid a percentage of your award that is agreed upon shortly after he or she decides to take your case. You do not pay the lawyer any money out of pocket.
Severance Packages for Employees Over the Age of 40
In 1990, the Older Workers Benefit Protection Act (“OWBPA”) was passed to amend the ADEA. One of the changes it made was enhancing the protections of employees over the age of 40 who were offered severance packages as these usually include waiving his or her right to file a claim under the ADEA/FEHA. In order for it to be considered “valid” the severance package must:
- Be in writing and be understandable;
- Specifically refer to ADEA rights or claims;
- Not waive future rights or claims;
- Be exchanged for valuable consideration (compensation, medical, etc.);
- Advise the individual in writing to consult with an attorney before agreeing; and
- Allow 21 days for the individual to consider the agreement, and at least seven days to revoke the agreement after signing it.
If you would like to know if you have an age discrimination case against your former employer, call a Los Angeles employment lawyer for a free consultation. There is no obligation to call and this office never charges clients for case evaluation.
If you are looking for our racial discrimination page, click here. If you are looking for our disability discrimination page, click here. If you are looking for our gender discrimination page, click here. If you are looking for our religious discrimination page, click here.
 CA Government Code § 12940(a)(5)(A))