California’s Fair Employment and Housing Act (FEHA) contains state protections against age discrimination. The Age Discrimination in Employment Act (ADEA)1 sets forth federal protections against age discrimination and is enforced by the Equal Employment Opportunity Commission (EEOC). For more information on the ADEA, please see Age Discrimination in Employment Act of 1967 (ADEA). For more information on defenses specific to the ADEA, please see ”Reasonable Factor Other than Age” as an Age Discrimination Defense.

This page contains the following information:

• Protections Against Age Discrimination
• Examples of Age Discrimination
• Employer Liable When Bias Influences Decision
• Substantially Younger Person
• Termination Based on Salary
• Reverse Age Discrimination
• Mandatory Retirement and Discrimination
• Waivers of Rights by Older Employees

Protections Against Age Discrimination

Employers can’t:

• Use age as a consideration for employment decisions, such as hiring, firing, discipline or promotions, unless it is a bona fide occupational qualification (BFOQ). For more information, see Bona Fide Occupational Qualification (BFOQ) as a Discrimination Defense.
• Discriminate on the basis of age with regard to the terms, conditions or privileges of employment; for example denying an employee aged 40 or over the educational opportunities made available to younger employees.
• Discriminate against someone who opposed, filed a charge against, testified or participated in an investigation of an unlawful employment practice under the ADEA or FEHA.
• Place an employment notice or advertisement indicating a preference, limitation or specification based on age, unless age is a BFOQ.
• Terminate employees based on salary if the terminations create a disproportionate impact on older workers.
• Force an employee to retire because they reach a certain age.

• Effective October 1, 2025, FEHA regulations state that it is unlawful for an employer or other covered entity to use an automated-decision system or selection criteria, including a qualification standard, employment test, or proxy (a characteristic or category closely correlated with a FEHA-protected characteristic) that discriminates against an applicant or employee or a class of applicants or employees on the basis of age.2 In other words, the age discrimination prohibitions discussed in this section still apply when the employer uses an automated decision system in their practices. This may include, for example, using automated decision systems, including artificial intelligence, in assessing applicants and employees, screening resumes, and other employment practices.

For more information, see Automated Decision Systems and Artificial Intelligence in FEHA - California's Fair Employment and Housing Act.

Generally, to establish a claim of age discrimination, an applicant or employee needs to show that they were in a protected class (40+ years old), qualified for the position sought or performing competently in the position held, suffered an adverse employment action, and some evidence discriminatory motive.

Employers can rebut the claim by showing that they had a legitimate nondiscriminatory reason for the challenged personnel action. If the employer establishes a legitimate reason, the employee can try to present evidence that the employer’s reason was a pretext for discrimination or offer any other evidence of discriminatory motive. The employee can use direct or circumstantial evidence to support their claim.

If an employee can prove that the employer’s explanation is false, a jury may decide that the employer is trying to cover up a discriminatory purpose for the negative personnel decision.3 The employee still retains the ultimate burden to show that age was a reason for the employer’s action.4

Proof that the employer’s explanation is false is one form of circumstantial evidence and in some circumstances it may be enough. In others, the falsity may be too weak to show a discriminatory motive. As the California Supreme Court noted in Guz v. Bechtel National, Inc., the anti-discrimination statutes aren’t there to penalize errors or lies, but they are there to prohibit discriminatory motives.5

The California Supreme Court made it clear that under California law, an employer may win an age discrimination claim without going to trial if:

• The employer can offer strong evidence of legitimate reasons for the allegedly discriminatory actions.
• The employee offers only weak or circumstantial evidence of a discriminatory motive.

• Carefully document the reasons for terminations, demotions and other negative employment actions. Approach each negative action as though convincing a jury that your reasons are legitimate and nondiscriminatory. Accurate performance reviews, warning notices, attendance records and similar documents can help you avoid the appearance of discrimination.

Employees can also bring “disparate impact” age discrimination claims. In a disparate impact case, the claimant need only show that an employer’s apparently neutral policy creates a disproportionate adverse effect on a protected class of employees.

Examples of Age Discrimination

The following cases illustrate the types of age discrimination claims that can land an employer in trouble.

Case No. 1: In Sandell v. Taylor-Listug, Inc., performance evaluations played a crucial role in a court’s decision. Robert Sandell worked as vice president of sales for a guitar manufacturer from 2004 to 2007. Six months into his employment, he suffered a stroke and took time away from work to recover. He returned to work, but required a cane to walk and spoke noticeably slower. A few days after Sandell’s 60th birthday, the company terminated him, citing displeasure with his performance. Sandell sued for age and disability discrimination.6

The employer alleged it terminated Sandell for performance reasons. But the company made several errors that hurt its case. For instance, Sandell received positive performance reviews from management. Sandell’s supervisor noted minor deficiencies in his performance, but shifted the blame elsewhere for those deficiencies. The court stated that the positive performance evaluations cast doubt on the company’s argument that Sandell was terminated because of poor performance.

• It is important that managers write performance evaluations that accurately reflect an employee’s performance. If a manager includes language that attempts to soften the blow to an employee, that language can hurt an employer in court.

Case No. 2: In Reid v. Google, Inc., the California Supreme Court ruled that “stray remarks” made by people who are not involved in making a decision related to an individual’s employment may be relevant evidence of discriminatory intent. The decision deviates from the position taken by federal courts and makes it easier for California employees to provide evidence of discrimination in court.7

The employee alleged that he was a victim of age discrimination. He claimed a high-ranking employee made derogatory remarks about his age, calling his ideas “obsolete” and commenting that he was “slow,” “fuzzy,” and “lacked energy.” The employee also claimed that some of his co-workers referred to him as an “old man,” an “old guy” and an “old fuddy-duddy.”

In its ruling, the court stated that derogatory “stray remarks” made by non decision-makers or co-workers can properly be considered evidence of discrimination. The court stated that a strict rule excluding this type of evidence in court could exclude relevant, circumstantial evidence of discrimination being presented in a trial, which might lead to unfair results for a plaintiff in court.

Case No. 3: In France v. Johnson, the Ninth Circuit ruled that uninvited questions about retirement coupled with other age-related comments or actions may be evidence of discrimination. A federal border patrol agent was allowed to proceed to trial against the Department of Homeland Security (DHS) on a claim that he was denied a promotion due to his age.8

France, a border patrol agent, applied for a promotion to four open positions, along with 23 other employees.

At age 54, France was the oldest of the candidates and was not selected for promotion. The candidates’ ages ranged from 38 to 54 years old. The four candidates who were ultimately selected for the GS-15 positions were 44, 45, 47 and 48 years old.

France claimed that the promotion decision was based on age. DHS claimed that France lacked the leadership, judgment, flexibility and innovation for the position and argued these were legitimate, nondiscriminatory reasons for not promoting him.

France offered the following evidence to support his claim that the agency’s nondiscriminatory reasons were, in fact, just a cover for age discrimination:

• Chief Patrol Agent Gilbert expressed his preference in a staff meeting for “young, dynamic agents” to staff the GS-15 positions.
• Gilbert had repeated retirement discussions with France, despite the fact that France clearly indicated that he did not want to retire.
• Gilbert was on the panel of interviewers and also made the recommendation of four of the top six candidates for final consideration. Those four candidates were ultimately chosen.
• France offered testimony from other agents that Chief Border Patrol Agent Aguilar, who also made a recommendation of the final four candidates, preferred younger, less experienced agents.

The Ninth Circuit found that France, had direct and circumstantial evidence that DHS considered his age to be significant in making its promotion decision; at least enough for France to get to trial.

Case No. 4: In Hoglund v. Sierra Nevada Memorial-Miners Hospital, Hoglund was a 56-year old hospital laboratory supervisor, whose supervisor, Horne, made continual age-related harassing comments for many years, such as describing Hoglund as “sloppy” and “old-fashioned,” and critiquing her hair and clothing. In addition to comments directed at Hoglund about her appearance and work, Horne also made general comments about the “aging staff,” repeated inquiries about who will retire next and expressed a desire to “hire babies” because “they are easier to train.”

Hoglund sued for FEHA-related claims of age harassment and discrimination and was awarded nearly $2.5 million in damages, attorneys’ fees and litigation costs at trial, largely due to her supervisor’s repeated age-related comments and a motivation to terminate Hoglund’s employment due to Horne’s animus against older employees.9

• Case No. 5: In Caldrone v. Circle K Stores Inc., three long-term employees sued Circle K Stores Inc. for discrimination, alleging that because of their age, they were denied the opportunity to apply for a regional director role that Circle K filled with a younger candidate after not posting the position internally. The lower court dismissed the case, finding the employees could not establish a prima facie case of age discrimination because they hadn’t applied for the promotion. The Ninth Circuit reversed this, holding that employees don’t need to apply for a position if the employer never made the opportunity available. The Ninth Circuit reversed the dismissal and sent the case back for a jury trial.10

Employer Liable When Bias Influences Decision

The Ninth Circuit Court of Appeals has held that a supervisor who has a bias against older employees exposes their employer to liability if the supervisor is able to influence what is supposed to be an objective process.11

In Poland v. Chertoff, the process was an administrative panel’s review of an employee’s performance. An employee who was demoted and transferred after the panel found his work ineffective was successful in his ADEA claim. He demonstrated that his manager’s bias against him because of his age influenced the panel’s review. The employee was also able to show that the supervisor’s bias escalated to retaliation after the employee filed a complaint that alleged age discrimination against his employer.12

However, the employee was not able to prove that his transfer and demotion were so extraordinary or egregious as to warrant a constructive discharge claim. The court clarified that the bar is set high for finding constructive discharge because “federal anti-discrimination policies are better served when employee and employer attack discrimination within their existing employment relationship, rather than when the employee walks away and then later litigates” over whether the situation was intolerable.

For more information on constructive discharge, see “Constructive Discharge” in Hostile Environment Harassment.

Substantially Younger Person

Evidence that an age-protected employee was replaced by a “substantially younger” person or that a substantially younger person was given more favorable treatment or promoted can lead to an inference that there was intentional age discrimination.13

It’s irrelevant that the promoted individuals or individuals who were treated more favorably were also over the age of 40: It just matters if they were “substantially” younger than the complaining employee.

But what does “substantially younger” mean? This issue was addressed by a federal Ninth Circuit case. The court set a bright line “workable” rule also applied by other circuits.14

The court addressed a failure-to-promote case. The average age difference between the employee who was not promoted (54) and the four candidates who were promoted (44, 45, 47 and 48) was eight years.

The adopted rule:

• An average age difference of 10 years or more between the complaining party and their replacements will be presumed as substantially younger.
• An average age difference of less than 10 years will be presumed to be insubstantial. However, if the age difference is less than 10 years, a complainant can rebut the presumption by producing additional direct or circumstantial evidence to show that the employer considered the complainant’s age to be a significant factor.

In this case, the average eight-year age difference was presumptively insubstantial to raise a claim. However, the Ninth Circuit went on to look at whether the employee had enough evidence to show that the employer considered his age to be significant.

The Ninth Circuit has also noted that an employee can demonstrate discrimination when a replacement employee is significantly younger and has inferior experience (in this case, 13 years younger and 21 years less experience).15

• When making employment decisions involving employees age 40 and over, it will be important to consider whether the decision is being made in favor of a substantially younger applicant/employee, especially where the age difference is 10 years or more. As with all employment decisions, ensure that the decision is supported by objective, documented and legitimate business reasons.

Termination Based on Salary

If you terminate employees with higher salaries as a cost-cutting measure, you increase your liability for age discrimination if the cuts disproportionately impact employees age 40 or over. The legal theory is not that you intentionally discriminated against the employee(s), but that your policy unintentionally created a discriminatory impact. For more information, see Discrimination Defined.

A California law targeting age discrimination is a direct result of Marks v. Loral Corp.,16 a California Court of Appeal case. The court held that an employer’s decision to terminate certain employees based purely on economic factors was not illegal age discrimination. In response to this decision, the state Legislature passed a law that declared that “the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if that use of criterion adversely impacts older workers as a group ....”17

You can use an affirmative defense if your employee claims age discrimination under this law. For more information, see Defense Against a Claim of Discrimination.

Reverse Age Discrimination

The U.S. Supreme Court decided that the ADEA does not deter employers from favoring older employees over younger employees. In General Dynamics Land Systems, Inc. v. Cline, a collective bargaining agreement included retiree health benefits for employees who retired after 30 years on the job and who were 50 years of age and older on July 1, 1997.

Employees who were over 40 but not yet 50 years old as of that date sued, claiming that the agreement violated the ADEA. The U.S. Supreme Court found that the ADEA’s text, structure, purpose, history and relationship to other federal statutes show that the ADEA does not intend to stop an employer from favoring an older employee over a younger one.18

Mandatory Retirement and Discrimination

Private-sector employers with 20 or more employees (five or more employees in California) and most public-sector employers cannot institute a mandatory retirement age. Separations from employment must happen for reasons other than reaching a certain age.

However, there are exceptions to prohibiting mandatory retirement at any age. For example, states and localities can require mandatory retirement ages for firefighters and law enforcement officers.

The ADEA allows companies to require mandatory retirement at age 65 for employees in an executive capacity for at least two years before retirement and who will receive a retirement benefit of at least $44,000 annually.19 California requires only a $27,000 annual retirement benefit.20

Because of the prohibition against mandatory retirement, you cannot give employees an ultimatum that they either accept retirement under a special early retirement plan or be subject to adverse treatment such as demotion, reduction in pay or diminished chance of career advancement.21 However, you can lawfully offer purely voluntary early retirement programs to reduce costs.21

At least one court found that offering an early retirement option to an employee who is slated for termination due to nondiscriminatory work deficiencies did not violate the ADEA.23 You cannot refuse to rehire an individual because that individual receives pension benefits.

Employers should be mindful that comments regarding when an employee plans to retire may be considered evidence of age-related bias. For more information, see Examples of Age Discrimination.

Employers will want to provide factual retirement information to employees (for instance relating to company benefits) but not press employees on when they plan to retire or engage in uninvited discussions regarding voluntary retirement plans.

Waivers of Rights by Older Employees

Employees can waive their rights and claims under the ADEA. Employers with 20 or more employees can offer waivers to employees in connection with exit incentives or other employment termination programs.24

All waivers must:

• Be in writing.
• Be “knowing and voluntary.”
• Be drafted in plain language geared to the employee’s level of understanding.
• Specifically refer to the ADEA by name.
• Advise employees in writing to seek legal advice before executing the agreement.
• Allow at least 21 days within which the employee can consider the agreement. You must give 45 days if the waiver is in conjunction with an exit incentive or termination program that is offered to a group or class of employees.
• Allow seven days after the agreement is signed for the employee to change their mind and revoke the agreement.

Additionally, the waiver cannot waive any future rights that the employee may have after the date the waiver is signed. When drafting a waiver, consult with legal counsel. Waiver requirements are detailed. The courts have held some waivers to be invalid.

Invalid ADEA Waiver

In Oubre v. Entergy Operations, Inc., the U.S. Supreme Court allowed a former employee who received severance pay in exchange for signing a waiver of all claims against her employer to file an age discrimination claim and keep the severance paid to her. The employer attempted to comply with the ADEA’s detailed waiver requirements, but did not give the employee the full time period to consider the agreement or to change her mind about it, and failed to make specific written reference to the ADEA.

An employee cannot waive an ADEA claim unless the employer first complies with all the ADEA’s requirements.25 As a result of the Court’s decision, an invalid waiver results in the employee retaining the severance money and being able to sue the employer.

The ADEA contains five specific exemptions from its prohibition against age discrimination. It is lawful for you to take action if:

• Age is a BFOQ reasonably necessary to business operations.
• The action is based on reasonable factors other than age.
• The action is in observance of a bona fide seniority system.
• The action is in observance of a bona fide employee benefit plan.
• You have good cause to discipline or discharge the employee.26

In EEOC v. Insurance Company of North America, the Ninth Circuit Court of Appeals ruled that the ADEA does not prohibit employers from adopting policies about hiring overqualified applicants if employers adopt the policies in good faith and apply them evenhandedly.27 An applicant sued an insurance company for age discrimination after being rejected for being overqualified for a loss control position. The court found that the insurance company’s reasons for rejecting the applicant — his background was too technical and engineering-oriented — were legitimate and nondiscriminatory.

1. 29 U.S.C. 621 et.seq.