You’re experienced. You’ve got the skills. You applied for the job and nailed the interview. And then? Nothing. This process is repeated over and over again, even for jobs well below your experience level. So you start to wonder: Was it my resume or my age?
If that question feels familiar, you’re not alone. Age discrimination in hiring is widespread, often subtle, and notoriously difficult to prove. But that doesn’t mean it’s legal or that you’re powerless.
At King & Siegel LLP, our age discrimination lawyers have helped countless job applicants push back against unfair hiring practices. In this guide, we break down the laws that protect older workers in California, explain how to prove ageism in the hiring process, and outline what steps you can take if you suspect age played a role in your rejection. Because being overlooked isn’t just frustrating: It may be discrimination.
What Are the Laws Against Age Discrimination in Hiring?
The AARP reports that 78% of older workers either saw or experienced age discrimination in the workplace during the COVID-19 pandemic. Those same workers expressed interest in learning new skills and jobs, yet were largely denied those opportunities or felt they experienced more roadblocks than their younger counterparts.
Workers and applicants have the right to seek employment and a fair opportunity to get a job, regardless of age. To that end, governments at the state and federal levels have laws in place to protect workers against discrimination and provide recourse in the unfortunate event that they are mistreated because of their age.
Federal Laws
The Age Discrimination in Employment Act of 1967 (ADEA) makes it illegal for employers to discriminate against applicants and employees because of age if the person is 40 years old or older. The law applies to businesses and private employers (e.g., non-government jobs) with 20 or more employees and, in many circumstances, to federal and state agencies. The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing these and other anti-discrimination laws at the national level.
Additionally, the U.S. Congress passed the Protecting Older Workers Against Discrimination Act of 2021 (POWADA), which provides enhanced legal protections for workers seeking to file a discrimination claim. In the past, workers had to prove that their age was the sole or primary factor leading to them being fired or passed over for a younger applicant. POWADA does away with this standard, requiring claimants instead to prove only that age was a motivating factor.
California Laws
California’s Fair Employment and Housing Act (FEHA) protects applicants and workers from age discrimination in the hiring process. Under FEHA, it is illegal for an employer with five or more employees to treat an applicant or employee adversely because of their age. These protections extend to applicants and employees 40 years of age or older when the discriminatory practice occurred.
California’s Civil Rights Department (CRD) enforces California’s anti-discrimination laws and oversees disputes between workers and employers. California’s anti-discrimination laws apply to public and private businesses and employers, except for non-profit religious organizations or the federal government.
What Is Considered Age Discrimination Under the Law?
Age discrimination occurs when an applicant or employee experiences disparate treatment because of their age. Additionally, if an employee or applicant experiences an adverse employment action because of their age, this may constitute age discrimination.
What Is Disparate Treatment?
The ADEA prohibits disparate treatment regarding age in the hiring and employment process. But what constitutes disparate treatment?
Disparate treatment is intentionally treating someone differently because of a protected characteristic they possess, such as their age. For example, it is generally illegal to systematically disregard the resumes of people who are 40 years or older. Similarly, it is often illegal to terminate older workers while retaining younger workers.
What Other Practices Do the Anti-Discrimination Laws Prohibit?
The ADEA and other civil rights laws also forbid employers from putting into place practices, job requirements, or other initiatives that, while neutral on their face have a disparate impact on people 40 years of age or older. Examples of such practices include unjustifiably adding a high lifting and mobility requirement to the job description, which may be more challenging for people over 40 to meet. These practices create an unnecessary barrier for applicants to have a fair chance at being hired.
Subtle Signs of Age Discrimination in Hiring
In today’s job market, employers often cloak ageism in coded language or informal practices that allow them to sidestep legal exposure while still disadvantaging older candidates.
Watch for these common red flags during the hiring process:
- Job descriptions that emphasize “digital natives,” “cultural fit,” or “recent grads.” These terms may suggest a preference for younger candidates.
- Requests for graduation years or full work history. These details can expose your age unnecessarily, especially if they are irrelevant to the position.
- Unexplained radio silence after interviews. While not definitive, it’s suspicious when a qualified candidate is ghosted immediately after a conversation, especially if the company quickly fills the role with a younger applicant.
- Loaded comments during interviews. “This is a fast-paced environment,” or “We’re looking for someone with lots of energy,” may be code for youth bias.
If you notice a pattern of younger hires, conflicting feedback, or dismissive communication tied to your age, it’s worth documenting. You may not have direct proof yet, but you might see the early signs of a discriminatory hiring culture.
Age Discrimination by Algorithmic Hiring Tools
In Mobley v. Workday, Inc., a class action lawsuit filed in February 2023, a 40-year-old Black job applicant alleged that Workday’s AI-powered hiring tools discriminated against older, Black, and disabled applicants. According to the complaint, Workday’s screening algorithms, which are used by major employers like Amazon, CVS, and Target, systematically filtered out applicants over 40 before they ever had a chance to interview.
The case is a powerful example of how age discrimination is evolving in the digital era—and how bias, even when hidden behind artificial intelligence, is still illegal.
Mobley’s lawsuit is currently pending in the Northern District of California and could have sweeping implications for how employers use AI in hiring. The plaintiff has already passed major hurdles and won conditional certification of a collective action for those harmed by discrimination in Workday’s hiring tools. If you’ve applied to a job through a third-party hiring platform and suspect discrimination, we strongly recommend that you contact us immediately.
How to Prove Age Discrimination in the Hiring Process for Employees Over 40
Under California law, to prove ageism in hiring, you must demonstrate that your age was a “substantial motivating factor” in the employer’s decision not to hire you. This means age doesn’t need to be the sole reason, but it played a significant role in the hiring decision. To prove age discrimination in the hiring process, you must show that:
- You applied for a position or promotion;
- The employer is a qualified employer under state or federal law;
- You met the qualifications for the job;
- You were not hired for the role;
- Your age was a motivating factor in the employer’s decision not to hire or promote you.
Evidence you can use to support your age discrimination includes:
- Documentary evidence (such as an email, text, or letter);
- The circumstances surrounding the employer’s decision (e.g., hiring a younger worker instead); and
- Statements made by the interviewers.
Our age discrimination attorneys know how to prove discrimination in the hiring process and can help you gather the evidence you need to support your discrimination claim. We understand the system and the tactics that employers use to hide discriminatory practices and can help you fight against them.
What to Do If You Suspect Age Discrimination in Hiring
Acting quickly and methodically can help strengthen your legal options if you believe your age contributed to your not being hired.
Here’s what you should do:
- Document everything. Save the job posting, your application materials, and any correspondence with the employer. If the job ad disappears after your rejection, but a younger hire is announced, screenshot the evidence.
- Take notes post-interview. Write down anything unusual that was said or implied, especially if age-related topics came up directly or indirectly.
- Compare qualifications. If you learn that the employer hired a significantly younger candidate, note how your qualifications differ. Courts may consider whether you were equally or more qualified.
- File an internal complaint if possible. If you’re an internal candidate passed over for a promotion, use HR channels to express concern. This puts the employer on notice and may later support your claim.
- Speak with a lawyer. Age discrimination claims are fact-intensive and hard to prove without help. A skilled employment attorney can assess the strength of your claim, guide next steps, and help you avoid procedural missteps.
- Submit a complaint to the EEOC or the California Civil Rights Department. You must file with one of these agencies before pursuing a lawsuit. They may investigate or issue a “right to sue” letter, allowing you to proceed in court.
Don’t stay silent if you believe an employer overlooked you because of your age. With legal guidance, you may be able to hold the employer accountable and protect your right to fair consideration.
King & Siegel LLP: California Age Discrimination Attorneys Fighting for Plaintiffs
Our team of top-tier advocates fights against businesses and corporations of all sizes who wrongfully discriminate against applicants and employees because of their age. We believe everyone deserves a fair opportunity to work, and those who subject their workers and applicants to unfair treatment and harassment should be held accountable. Julian Burns King worked at several large litigation firms, helping to recover over $750 million on behalf of plaintiffs, before founding King & Siegel LLP. Since the Firm was founded in 2018, we have recovered more than $120 million for plaintiffs in employment cases. If you or your loved one were discriminated against because of your age, call our team today or contact us online to schedule a consultation.
Julian Burns King graduated with honors from Harvard Law School and founded King & Siegel in 2018. As head of the Firm’s discrimination and harassment practice areas, she champions the rights of working parents and victims of workplace discrimination and harassment. She has been recognized as a “Rising Star” by Super Lawyers annually since 2018 and has recovered tens of millions of dollars on behalf of her clients.