How to Prove Age Discrimination in the Workplace
| Read Time: 4 minutes | Discrimination

If you are qualified for a job and willing to work, why should your age affect your employment opportunities? The short answer is that your age should not be a factor in your professional opportunities, and age-based discrimination is illegal. Victims of age discrimination in California can seek financial damages and other legal relief under state and federal laws. If you are seeking relief from employer misconduct, our top-rated age discrimination attorneys at King & Siegel LLP can help ensure you receive every legal remedy you deserve under the law. 

What Rights Do I Have Against Age Discrimination?

Under the Age Discrimination in Employment Act (ADEA) and the California Fair Employment and Housing Act, employees who are 40 years old and older are protected from age-based employment discrimination. Employers cannot take the following actions against employees or job applicants because they are 40 or older: 

  • Refuse to hire, 
  • Deny benefits, 
  • Reduce pay,
  • Present exclusionary job postings, 
  • Exclude from training opportunities or work functions,
  • Take unwarranted disciplinary action, 
  • Force early retirement,
  • Refuse to promote,
  • Terminate,
  • Demote, 
  • Pay unequally, 
  • Make unwanted job transfers, 
  • Enable harassment, or 
  • Make other adverse employment decisions.

If a business, agency, or organization engages in any of the above activities, an affected party can take legal action. 

You can enforce your rights against discrimination by filing a lawsuit in court or a complaint with the U.S. Equal Employment Opportunity Commission or the California Department of Fair Employment and Housing. A successful complainant can win compensation for financial losses, punitive damages, compensation for emotional harm, attorney fees, and orders for changes at their workplace. Now that you know your rights against age-based discrimination, let’s talk about how to prove age discrimination in the workplace. 

Proving Age-Based Discrimination

To maintain and win an age discrimination case, you need to be able to prove the following elements: 

  • Your eligibility to file a complaint or lawsuit, 
  • Discriminatory treatment by your employer based on your age, and
  • Your entitlement to damages. 

On paper, these steps look simple enough, but they can be challenging undertakings in reality. Our seasoned and well-trained employment attorneys can handle your litigation needs to help make sure your employer is held accountable. 


The ADEA and FEHA do not apply to every instance of age-based workplace discrimination. First, only employees and job applicants are entitled to protection under state and federal anti-discrimination laws. If you are an independent contractor, you do not have ADEA or FEHA job protections. Second, ADEA protects only employees who are 40 and over, as does the  FEHA. And third, only employers with 20 or more employees are subject to ADEA requirements, and only employers with five or more employees are subject to FEHA. However, a victim of harassment is entitled to relief under FEHA regardless of the size of their employer’s workforce. 

Discriminatory Treatment

In general, age discrimination can appear in the workplace in two ways. Discrimination can show up in disparate treatment or disparate impact

Disparate treatment

Disparate treatment discrimination is an intentional type of discrimination in which an employer (or someone under the employer’s control) wants to treat you differently because of your age. The disparate treatment might be overt (e.g., your employer makes comments about your age before taking adverse action against you) or covert (e.g., your employer enforces its disciplinary policies only against employees over 40).  

To prove disparate treatment, you will likely need to collect evidence by taking the following actions:

  • Taking detailed notes regarding every discriminatory encounter,
  • Collecting witness information, 
  • Gathering copies of disciplinary actions and commendations,
  • Retaining copies of employer policies and handbooks, 
  • Obtaining copies of personnel records, and 
  • Keeping copies of employer correspondence.

Remember, current and former employees in the State of California have the right to inspect and receive copies of their personnel records. And whatever relevant evidence you cannot legally collect on your own, an experienced lawyer can obtain it on your behalf. 

Disparate impact

An employer does not always have to have the intent to harm you because of your age to be liable for age discrimination. Sometimes a seemingly “innocuous” work practice or policy is illegal because it disproportionately affects employees who are 40 or over. 

For example, an employer might have a policy to recruit the majority of its job candidates from a college program that has only been in existence for 10 years. An employer recruiting a majority of its applicants from a college program that is only a decade old will likely exclude a large number of workers over 40. You could prove that this practice has an illegal impact by providing a judge with copies of or testimony about the employer’s policy and statistical evidence that shows the practice mainly excludes workers over 40. 

Entitlement to Damages

To prove that you should be compensated for the age-based discrimination you suffered, you need to collect all related receipts, invoices, medical records, wage records, and witness information related to your financial losses. Witnesses, healthcare records, and employer correspondence can also prove that you suffered emotional harm or that a court or government agency needs to take other corrective action against your employer. 

Your First Step to Winning a Discrimination Claim Is Hiring a Good Attorney

Age discrimination is discouraging when it happens and daunting when you need to prove it in a legal proceeding. But a good advocate can help protect you and ensure your success in legal action against a discriminatory employer. At King & Siegel, we have a significant roster of award-winning employment law attorneys who trained at top-five law schools and the largest law firms in the nation. And now, we use our top credentials, experience, and passion for justice to help employees in California. Please contact us online or call us for a free consultation. 

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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.

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