Suing for Age Discrimination

If you’ve been treated differently at work based on your age, you may have grounds to sue your employer.

By , J.D. · UC Berkeley School of Law

Federal law prohibits employers from discriminating against employees who are at least 40 years old. Many states also have their own laws protecting employees from age discrimination.

If you believe you have been discriminated against because of your age, and you want to pursue a lawsuit against your employer, you should have a basic understanding of what the process entails.

This article discusses the legal process of filing an age discrimination lawsuit and how an experienced employment lawyer will help you in your case. (For information on age discrimination in general, see Your Rights Against Age Discrimination.)

Age Discrimination in Employment

The federal Age Discrimination in Employment Act (ADEA) bars employers from discriminating against workers who are 40 years old and over. Under the ADEA, employers may not treat a worker who is under 40 more favorably than a worker who is over 40 based on age.

The ADEA also prohibits employers from discriminating among workers who are 40 and older. For example, an employer cannot treat a 44-year-old employee more favorably than a 60-year-old employee simply because of their ages.

The ADEA protects older workers from discrimination at all stages of the hiring process and employment relationship, from job announcements to terminations.

The ADEA also bans discrimination against older employees in terms of fringe benefits, such as health insurance, disability insurance, and retirement plans. In general, this means that employers must offer equal benefits to older and younger workers.

Several states have their own laws that prohibit age discrimination in employment, some of which provide greater protections than the ADEA or allow plaintiffs to seek a wider set of damages than the ADEA.

How to File an Age Discrimination Lawsuit

The process of suing your employer for age discrimination can be complex, lengthy, and time-consuming. In most cases, you will need an employment lawyer to represent you and help you achieve the best outcome. The following are the stages of the process that you can expect to go through.

Filing an Administrative Complaint

Before filing an age discrimination lawsuit in court, you must first file an administrative complaint with the Equal Employment Opportunity Commission (EEOC), which is the agency that enforces federal antidiscrimination laws. Filing a charge with the EEOC is a prerequisite to filing a discrimination lawsuit. Your state may have its own agency for enforcing state age discrimination laws, in which case you may have to file a complaint with the proper state agency as well.

Once you file a claim with the EEOC, it will investigate your complaint, typically by contacting your employer, interviewing witnesses, and reviewing other evidence. When the EEOC has completed its investigation, it will usually issue a right-to-sue notice, which means that you have 90 days to file a lawsuit.

Unlike other discrimination claims, you don't have to wait for a right-to-sue notice in order to file an age discrimination lawsuit. You can file your lawsuit at any time after 60 days from the date you filed your charge. An employment lawyer will keep track of these deadlines and file the appropriate paperwork.

Filing in Court

Once you've met the administrative claim requirements described above, you can file a complaint in court. A complaint is a legal document that explains the basis of your age discrimination lawsuit and what damages you are seeking. This is the official beginning of your age discrimination lawsuit.


After you file your lawsuit, both sides will conduct discovery. Discovery is the phase of a lawsuit where the parties, or more likely their attorneys, take recorded statements from witnesses (called "depositions"), request documents, ask written questions to the other side (called "interrogatories"), and otherwise gather evidence to use at trial.

Your employer will most likely have a lawyer to represent its interests and defend against your claims. The defense lawyer will take your deposition during the discovery phase, which is very similar to testifying in court (because you will answer questions under oath and everything will be recorded in a transcript).

If you have a lawyer, he or she will attend the deposition with you and make sure that all of the questions asked are appropriate. Your lawyer will also take depositions of the individuals who took the discriminatory actions against you. Your lawyer may also take depositions of other individuals, such as younger workers who were treated better by your employer.


At some point after you file the EEOC complaint and before you go to trial, you will have an opportunity to try to settle your case, usually with the aid of a third-party, such as a mediator. In many cases, the parties will voluntarily agree to participate in mediation (though it can also be mandated by the court).

During mediation, the parties get together for an informal conference to try and negotiate a settlement agreement. If you have a lawyer, he or she will represent you in the mediation, explain the relative strengths and weaknesses of your case to you, and help you formulate settlement offers. Your employer's lawyer will respond with counter settlement offers, until the parties can hopefully reach an agreement.

Unlike a trial, though, mediation does not result in one side "winning." Instead, if the mediation is successful, you and your employer resolve the matter by agreeing on certain terms (including a settlement payment), and there is no trial. Most cases do settle, either at a mediation or through other informal negotiations, but every case is different. If settlement efforts are not successful, you will move forward with trial.


After the discovery stage is complete, the parties will prepare to present the evidence gathered at trial. You must be present in court for each day of the trial, which may take several days or even weeks in some cases. Your lawyer will prepare you to testify at trial and explain the trial process to you well in advance of the first day of trial.

Fees and Costs

Lawsuits are expensive, even if your lawyer takes your case on a contingent fee basis (meaning he or she takes a percentage of your winnings and only gets paid if you do). This is because many aspects of the process are costly, such as depositions and expert witness testimony (both of which can cost thousands of dollars per day).

Economists or other expert witnesses are often necessary to support your claim for lost wages and other damages. Often times, the plaintiff is responsible for paying these costs as they're incurred in an employment discrimination case.

How Hard Is It to Prove Age Discrimination?

As with any type of discrimination claim, your employer is unlikely to simply put their hands up and admit that it has occurred. That means you bear the burden of proving your case with evidence. In most cases, there won't be a "smoking gun." But even without one, your chances of a successful outcome are high if you have concrete evidence—emails, letters, performance reviews—tending to show that you experienced adverse action because of your age.

And don't forget about retaliation claims either, which are often more straightforward to prove than discrimination. For example, if your employer gave you less desirable job duties after you complained of discrimination, that is a textbook case of retaliation.

Finally, an experienced employment attorney will understand how to present your case in the most persuasive way possible.

Talk to an Employment Lawyer About Your Age Discrimination Case

As you can see, filing a lawsuit is a complex process that usually requires the assistance of an experienced attorney. Before you take any of the steps summarized above, you should to talk to an employment lawyer. A lawyer can help you decide on the best course of action, whether to accept or reject a settlement offer, and assess the risks and likelihood of success at trial.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Get Professional Help

Talk to a Wrongful Termination attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you