Take the First Step
September 2, 2024 · Benjamin J. Treger
What 40+ Employees Should Know
You have been with the company for years. You know the job. You are good at it. But lately, something has shifted. You are being excluded from meetings you used to attend. Younger employees are being promoted past you. Your manager keeps mentioning “fresh perspectives” and “new energy.” Your last performance review was surprisingly negative despite years of strong evaluations.
If you are over 40 and this sounds familiar, you may be experiencing age discrimination. And you are not imagining it.
California’s Fair Employment and Housing Act (FEHA) prohibits employment discrimination against individuals 40 years of age or older. This covers every aspect of the employment relationship: hiring, firing, promotion, compensation, job assignments, training opportunities, and any other term or condition of employment. The federal Age Discrimination in Employment Act (ADEA) provides additional protections at companies with 20 or more workers.
FEHA is broader than federal law in several important ways. It applies to employers with as few as five employees. It allows emotional distress damages and punitive damages that are unavailable under the ADEA. And it provides stronger protections against retaliation for reporting age discrimination.
Age discrimination is rarely stated explicitly. No employer sends an email saying “we are terminating you because you are too old.” Instead, it manifests through patterns, decisions, and coded language that an experienced attorney knows how to identify and present to a jury.
Coded language. Being told you are “overqualified.” Hearing that the team needs “fresh blood,” “new energy,” or a “digital native.” Being asked when you plan to retire, or whether you have “thought about your next chapter.” Comments about “keeping up with technology,” “cultural fit,” or “adaptability.” References to salary being “above market” when younger colleagues at similar levels are not told the same thing. These phrases sound neutral in isolation. In context, and in combination with adverse employment actions, they are powerful evidence of discriminatory intent.
Disparate treatment. Being passed over for promotions that go to younger, less experienced colleagues. Having your responsibilities gradually reduced or reassigned to junior staff without explanation. Being excluded from training programs, conferences, client meetings, or development opportunities offered to younger workers. Being subjected to heightened scrutiny, more frequent documentation of minor issues, or performance improvement plans that younger employees committing the same infractions are never placed on.
Targeted layoffs. Being selected for a “reduction in force” while younger employees in comparable roles are retained. Statistical patterns in layoff decisions that disproportionately affect older workers. The “restructuring” that eliminates your position but creates a nearly identical role filled by someone 15 years younger.
Constructive discharge. Sometimes employers do not fire older workers directly. Instead, they make conditions so intolerable that the employee feels forced to resign: stripping responsibilities, isolating the employee from the team, assigning demeaning or menial tasks, imposing impossible performance standards, or creating a hostile atmosphere through age-related comments and exclusion. This can constitute constructive termination under the law, with the same legal consequences as a direct firing.
One of the strongest forms of evidence in age discrimination cases is showing how similarly situated younger employees were treated differently. Were they given opportunities you were denied? Were their mistakes overlooked while yours were documented? Did they receive coaching, second chances, and mentorship while you were put on a performance improvement plan? Were they promoted on a faster timeline with fewer qualifications? Did they receive more favorable schedules, assignments, or evaluations?
An experienced employment attorney will help you identify the right comparators and systematically document the disparities in treatment. Courts and juries understand that discrimination hides behind unequal treatment, and well-presented comparator evidence makes the pattern visible.
Employers sometimes argue that age discrimination is unlikely because the same person who hired the employee also fired them. This is the “same actor” defense, and while courts consider it, it is far from dispositive. People’s attitudes change. A manager who hired you enthusiastically at 48 may view you differently at 60. Company culture shifts, leadership changes, and new priorities emerge. The same actor inference weakens significantly when there is direct evidence of age-related comments, a pattern of replacing older workers with younger ones, or a shift in treatment that coincides with the employee reaching a certain age.
Age discrimination claims under FEHA can result in substantial recovery across multiple categories. Lost wages (past and future) reflect what you would have earned had the discrimination not occurred. For long-tenured, highly-compensated employees whose careers were cut short, this number alone can be significant, particularly when projected forward to reflect what would have been a natural retirement age. Emotional distress damages compensate for the anxiety, depression, humiliation, and loss of self-worth that accompany being pushed out of a career you built over decades. Punitive damages, available when the employer acted with malice or oppression, can be a multiple of the compensatory damages. And attorneys’ fees are recoverable under FEHA, meaning the employer pays your legal costs if you prevail.
You generally have three years from the date of the discriminatory act to file a complaint with the California Civil Rights Department (formerly DFEH). For federal ADEA claims, the deadline is 300 days. These deadlines are firm, and missing them can permanently bar your claim. But even within those limits, the sooner you act, the better. Evidence fades, witnesses leave the company, memories become less precise, and documents get deleted or lost. Early consultation with an attorney preserves your options.
If you believe your age is being held against you at work, contact Treger Legal for a free, confidential consultation.
This post is for informational purposes only and does not constitute legal advice. Consult with a qualified employment attorney about your specific situation.