In May 2025, the California Civil Rights Department (“CRD” ) released its latest “Fact Sheet on Protections Against Age Discrimination” (“Fact Sheet”) under California’s Fair Employment and Housing Act (“FEHA”). With age-related claims on the rise, this new guidance serves as a timely reminder for employers to take a closer look at their policies, hiring practices, and training to ensure compliance and reduce the risk of costly claims.
Which Employers Are Covered?
FEHA applies broadly to California employers, but the coverage differs slightly depending on the type of claim:
- Discrimination: FEHA’s discrimination provisions apply to employers with five or more employees.
- Harassment: FEHA’s harassment provisions apply to all employers, regardless of size.
Who Is Protected?
Under FEHA, employers may not discriminate against or harass individuals who are 40 or older. These protections apply to employees, job applicants, and candidates in the hiring process. FEHA also prohibits discrimination based on a mistaken belief that someone is 40 or older, or because of their association with someone in that age group.
Common Examples of Age Discrimination
The CRD’s Fact Sheet provides employers with helpful examples of conduct that could violate the law. Key areas of risk include:
- Job Advertisements: Avoid language that may suggest a preference for younger candidates. Phrases such as “young and energetic,” “recent college graduate,” “early career professional,” or “digital native” may be seen as discriminatory. Similarly, setting an experience cap (e.g., “no more than seven years of experience”) may unlawfully exclude older applicants.
- Interview Questions: Employers should not ask candidates their age, date of birth, or graduation year on applications, during interviews, or in pre-employment discussions. However, employers with legal reporting obligations, such as those with 100 or more employees, may collect this information for record keeping purposes only.
- Compensation Decisions: Employers cannot pay older employees lower wages based on assumptions that older employees have fewer financial obligations (e.g., no student loans or mortgages).
- Promotions and Career Advancement: Denying promotions based on age is prohibited.
- Layoffs and Forced Retirement: Targeting older workers for layoffs or encouraging early retirement based on age is strictly prohibited.
Subtle Forms of Age-Based Harassment
The new Fact Sheet also provides examples of how age-based harassment can create a hostile work environment. Even seemingly harmless jokes or comments can rise to the level of harassment when repeated or pervasive, including:
- Joking that someone has worked at the company since the “dark ages.”
- Mocking an employee’s clothing, hairstyle, or technology skills as “old-fashioned.”
- Repeatedly making comments like “Okay, Boomer!”
- Refusing to train older employees on new technologies.
Why Employers Should Act Now
According to the CRD, hundreds of age discrimination complaints are filed in California each year. This updated guidance highlights the need for employers to stay vigilant and proactive. Recommended steps include:
- Reviewing job postings, applications, and interview questions.
- Auditing promotion, compensation, and layoff decision-making processes.
- Providing updated anti-harassment training that addresses age-related comments and stereotypes.
- Reviewing complaint procedures and internal investigation protocols.
The CRD’s Fact Sheet serves as a timely reminder that age discrimination remains an active area of enforcement in California. Employers who proactively audit their policies and train their teams will be best positioned to avoid claims and maintain compliance.
If you have any questions about the Fact Sheet or require assistance to ensure your policies and practices are compliant with existing anti-discrimination and harassment laws, please reach out to your Cook Brown attorney.
