California Layoffs and Age Discrimination

A business reduction and an unlawful selection can coexist

An employer may have a real reason to reduce spending and still select employees unlawfully. Government Code section 12940(a) prohibits covered employment discrimination because of age, and 29 U.S.C. section 623 provides federal protection. The existence of a budget problem does not answer why you were selected instead of another employee.^{1, 2}

Begin with the selection process. Identify which jobs were considered, who made the choices, what criteria were used, and when those criteria were set. Then compare the explanation with your performance history, the work that remains, and the treatment of employees doing comparable work.

Search the California WARN layoff database for the employer and location. Use the notice to understand the announced event and affected positions. A WARN record generally does not provide the individual age and selection information needed to evaluate a claim under Government Code section 12940(a) or 29 U.S.C. section 623.^{1, 2}

Who the age discrimination laws protect

California FEHA protects employees and applicants age 40 and older under Government Code sections 12926(b) and 12940(a). Its discrimination provisions generally reach private employers with at least 5 employees, and CRD identifies state and local public employers as covered. These thresholds are described in CRD’s 2025 age discrimination fact sheet.¹

The federal ADEA protects employees age 40 and older under 29 U.S.C. section 631(a). Its private-employer coverage generally begins at 20 employees under section 630(b). Federal public-sector coverage has additional distinctions, so do not treat the private-employer headcount as the answer for every government worker.²

Age discrimination can occur even when a decision-maker is also older or the retained employee is within the protected age group. The question is whether prohibited age bias affected the employment decision under 29 U.S.C. section 623 and Government Code section 12940(a), not whether everyone involved falls on opposite sides of a simple age cutoff.^{1, 3}

Read the selection criteria before counting the list

Ask what the employer says it measured. Criteria may involve job functions, credentials, performance, location, or anticipated work. Write down the explanation in the terms actually used. If the explanation changes from “the role disappeared” to “your performance was weaker,” preserve both versions.

Then identify what information supported the decision. A performance ranking based on documented work differs factually from a manager’s unexplained impression. A skills comparison is easier to evaluate when the employer identifies the needed skill and the employees who possess it.

Look for criteria that may reflect age assumptions rather than actual ability. CRD’s 2025 guidance identifies age-coded preferences such as seeking a “digital native” as potential problems under Government Code section 12940(a). In a layoff, similarly vague assumptions about adaptability or career stage deserve examination in their actual context.¹

Do not assume that every reference to experience or compensation proves bias. Record the exact statement, who made it, what the person knew about your work, and how the statement connected to the selection. Specific facts are more useful than substituting the conclusion “age discrimination” for the underlying event.

What an OWBPA disclosure can show

When an employer seeks an ADEA waiver through a covered group termination or exit incentive program, 29 U.S.C. section 626(f)(1)(H) requires written information about the program’s covered unit, eligibility criteria, time limits, and relevant age and job-title data. The requirement is tied to the waiver setting, not every layoff announcement.⁴

The decisional unit matters because it identifies the employees considered in the decision. Under 29 C.F.R. section 1625.22(f), the relevant group depends on how the employer made the choices. A company-wide list may obscure a department-level decision, while an overly narrow list may omit employees who were actually compared.⁵

Check whether every page is present and whether the categories are understandable. Identify which entries are selected, eligible for a program, retained, or excluded from consideration. Those categories do not necessarily mean the same thing, especially when the employer offers a voluntary exit program alongside involuntary layoffs.

Compare the disclosure’s description with your organizational knowledge without filling gaps with guesses. If the list omits a role that your manager said was part of the comparison, note the omission and request clarification. Keep the original disclosure before adding your own annotations.

Use selection rates, not just the ages of those leaving

A list of older people who lost jobs is incomplete without information about the employees who could have been selected. The EEOC recommends reviewing whether a layoff process disproportionately affects protected groups. For an age claim under 29 U.S.C. section 623, the relevant population and selection method need careful definition.⁶

Consider this screening exercise. A decision group contains 40 employees age 40 or older and 40 younger employees. The employer selects 16 from the older group and 4 from the younger group. The selection rates are 40 percent and 10 percent. Those figures justify further questions; they do not establish a legal violation by themselves.⁶

The next questions concern comparability. Were both groups considered for the same surviving jobs? Did they perform different functions? Were some people in positions being closed entirely? Did the employer use a common scoring system? A calculation can be arithmetically correct and still compare the wrong populations.

Now consider a different group containing 90 older employees and 10 younger employees. If 18 older employees and 2 younger employees are selected, both groups have a 20 percent selection rate. Most selected workers are older, but that fact alone does not show a higher selection rate for the older group.⁶

Small groups require particular care. A minor change in the treatment of an employee can move the percentage substantially. Keep the underlying counts visible and avoid presenting a percentage without its denominator. Statistical significance and the proper legal comparison require more than a spreadsheet total.

Intentional discrimination and disparate impact are different theories

Intentional age discrimination concerns a decision made because of age under Government Code section 12940(a) or 29 U.S.C. section 623(a). Relevant evidence can include age-related statements, inconsistent explanations, and differences in the treatment of comparable employees. The legal inquiry connects the evidence to the decision, rather than treating a disliked outcome as sufficient.^{1, 3}

A disparate impact theory addresses a facially neutral practice that harms older workers as a group. Under the ADEA, the employee must identify the specific practice responsible for the disparity, while the employer may establish the reasonable-factors-other-than-age defense under 29 U.S.C. section 623(f)(1) and 29 C.F.R. section 1625.7.⁷

The federal defense examines whether the practice was reasonably designed and administered for a legitimate purpose. The EEOC identifies considerations such as how accurately the factor was defined, how consistently it was applied, and whether subjective judgments were constrained. A business objective does not automatically establish that the selection method satisfied 29 C.F.R. section 1625.7.⁷

California goes further than federal law on one common layoff practice. Government Code section 12941 declares the Legislature’s rejection of Marks v. Loral Corp. (1997) and its intent that using salary as the basis for choosing whom to terminate may constitute age discrimination if that criterion adversely impacts older workers as a group, and that the disparate impact theory of proof applies to age claims. A plan to cut the highest-paid employees therefore deserves the same scrutiny as an explicit age cutoff.⁸

Keep the California and federal analyses distinct. Do not assume that a federal reasonable-factors defense automatically resolves a California claim. Identify the challenged policy, its effect, and the justification offered before choosing the legal framework.

What comments and replacement jobs can contribute

Record comments about retirement, being overqualified, career runway, energy, or learning new systems in context. Note whether the speaker participated in selection and whether the comment concerned the work at issue. A contemporaneous account is more useful than a later summary that omits who said what.

If a position is advertised after your layoff, save the complete posting with its date and location. Compare responsibilities, qualifications, reporting lines, and actual work. A new title may conceal similar duties, while a similar title may describe substantially different work. The comparison should focus on facts.

Also record whether your duties moved to a retained employee or an outside provider. Redistribution is not itself proof of discrimination under Government Code section 12940(a). Its significance depends on how it fits with the employer’s stated reason and the other evidence of selection.¹

Deadlines: protect the state and federal routes separately

A California FEHA complaint generally must be filed with CRD within 3 years under Government Code section 12960(e). If you seek to sue under FEHA, the administrative process and right-to-sue requirements also matter. CRD’s current guidance describes a general 1-year lawsuit period after its right-to-sue notice under Government Code section 12965.^{9, 10}

For a California ADEA charge, the ordinary EEOC filing period is generally 300 days under 29 U.S.C. section 626(d)(1)(B). That is shorter than the ordinary CRD period. The statute also contains a condition tied to notice terminating state proceedings, so review agency notices rather than assuming the outer period always controls.^{4, 11}

Under 29 U.S.C. section 626(e), receipt of an EEOC dismissal or termination notice can start a 90-day court filing period. A charge deadline and a lawsuit deadline are separate. Save the notice, envelope, and electronic delivery record.⁴

Severance discussions, an internal appeal, or a pending grievance generally do not extend the EEOC charge deadline. The EEOC’s timing guidance makes that distinction under the laws it administers, including the ADEA. Preserve deadlines while evaluating the offer rather than assuming negotiations pause them.¹¹

Record both the date you learned of the decision and the date employment ended. Different claims can require different accrual analysis. Give the complete chronology to the person evaluating the deadlines instead of selecting only the later date.

Prepare evidence that can be checked

Organize the selection disclosure, job description, reviews, compensation history, separation letter, and relevant communications. Keep a separate list of witnesses and the subjects they personally observed. Distinguish facts you know from information someone else relayed.

For each disputed criterion, identify a specific record. If the employer cites missing qualifications, locate the credential or training record. If it cites poor results, compare the stated measurement with the review period and available performance data. If it cites a closed function, identify the surviving work without assuming who performed it.

Keep your job search and resulting earnings records as well. ADEA remedies under 29 U.S.C. section 626(b) can include lost-pay and equitable relief, with additional liquidated damages for qualifying willful violations. California remedies require their own analysis under Government Code section 12965 and other applicable law.^{4, 9}

Review the release before closing the inquiry

An ordinary ADEA severance waiver must satisfy 29 U.S.C. section 626(f), including applicable consideration, review, disclosure, and revocation requirements. A defective waiver does not itself prove the layoff was discriminatory. The validity of the release and the merits of the underlying claim are separate questions.^{4, 5}

Use the age discrimination page for the broader claim and the severance agreement guide for the release. Review wrongful termination, discrimination, retaliation, and wage and hour issues where the same separation raises additional concerns.

More layoff guides

• California WARN Act Guide: Layoff Notice and Pay: who is covered, what the notice must say, back pay and the daily penalty.
• California Severance Agreements: Before You Sign: what the release buys, OWBPA review periods, the 1542 waiver, secrecy limits, pricing the offer.
• California Furlough and Temporary Layoff Rights: when a furlough becomes a layoff, final wages, COBRA, partial unemployment.
• Final Paycheck After a California Layoff: when final wages and vacation are due, waiting time penalties with worked examples, the wage claim.
• Was Your California Layoff Retaliation?: protected activity, timing, changing explanations, the Lawson burden shift, leave protections.
• Layoff notice tracker: every California WARN notice, searchable by employer, county, city and year.
• Wage and hour guides: overtime, the 2026 minimum wage by city, meal and rest breaks, filing a wage claim and the deadlines.
• Wage theft tracker: U.S. Department of Labor back wage cases against California employers.
• Wrongful termination, age discrimination, workplace retaliation and wage and hour: the practice pages for a claim.

Questions about age and layoffs

Sources

1. California Civil Rights Department, California Law Protects Workers From Age Discrimination (2025): FEHA coverage, age bias, and layoffs.
2. U.S. Equal Employment Opportunity Commission, Fact Sheet: Age Discrimination (1997, accessed October 2026): ADEA coverage and prohibited decisions.
3. U.S. Equal Employment Opportunity Commission, Age Discrimination (accessed October 2026): Protected age group and age differences within it.
4. U.S. Government Publishing Office, United States Code, Title 29, Section 626 (2024 edition): Disclosures, waivers, deadlines, and remedies.
5. U.S. Equal Employment Opportunity Commission, Waivers and Claims Under the ADEA, 29 C.F.R. Section 1625.22 (1998, accessed October 2026): Decisional units and waiver rules.
6. U.S. Equal Employment Opportunity Commission, Avoiding Discrimination in Layoffs or Reductions in Force (accessed October 2026): Comparing selection effects..
7. U.S. Equal Employment Opportunity Commission, Questions and Answers on EEOC Final Rule on Disparate Impact and Reasonable Factors Other Than Age (2012, accessed October 2026): ADEA disparate impact and RFOA defense.
8. California Legislative Information, Government Code section 12941 (accessed October 2026): Rejection of Marks v. Loral, salary-based selection, and the disparate impact theory in age cases.
9. California Civil Rights Department, Employment Discrimination (accessed October 2026): State complaint period and remedies.
10. California Civil Rights Department, Obtain a Right-to-Sue Notice (accessed October 2026): State lawsuit timing.
11. U.S. Equal Employment Opportunity Commission, Time Limits for Filing a Charge (accessed October 2026): ADEA charge timing and effect of internal proceedings.

Statutes are cited by section so you can read them on the Legislature’s site. Worked examples use made-up numbers to show the method; they are not case results or predictions.