“Too Seasoned” Is Not a Defense: Avoiding Ageism Blind Spots in the C-Suite
The Forbes Business Council recently shined a very public spotlight on a very old problem—literally. In its August 2025 piece, “How Age Discrimination Impacts Corporate Leaders: Considerations for California Executives,” Forbes catalogues the quiet (and costly) ways companies sideline executives over 40: sudden demotions, post-funding purges of gray hair, euphemisms like “fresh perspective,” and severance agreements that come with all-you-can-eat waivers.
If you’re an employer who thinks this sounds like someone else’s problem, buckle up. Both federal and California regulators are more than happy to introduce you—and your balance sheet—to the Age Discrimination in Employment Act (“ADEA”) and the Fair Employment and Housing Act (“FEHA”). Let’s tour this legal minefield, shall we?
The Legal Framework (a/k/a “Why HR Is Hyperventilating”)
Let’s start with the ADEA, the federal statute that protects applicants and employees who are forty years old and older, i.e., the 40+ crowd, from discrimination in any “term, condition, or privilege of employment.”
And, it only applies to employers with more than twenty (20) employees.
So, can an employer with fifteen (15) employees (or 5 or 10) discriminate against an employee because of their age?
Heck no!
Or, not in California and not in many other jurisdictions. The FEHA covers employers with five or more employees. New York’s anti-discrimination statute covers employers with four or more employees. The District’s anti-discrimination statute covers employers with only one or more employees, including independent contractors.
In California, there are other differences. Unlike the ADEA’s “but-for” causation standard, FEHA only requires that age be a substantial motivating factor for an adverse action - - like a termination. Age does not have to be the only reason for an adverse action for a claim to succeed.
Translation: plaintiffs have an easier evidentiary road in state court, and juries can award uncapped compensatory and punitive damages.
Reality Check: How Age Bias Actually Shows Up
Age discrimination appears in workplaces in a myriad of ways.
Oh, you know. You’ve seen recruiting ads referencing “digital natives” or “fresh” eyes or perspectives. Such language is often thinly veiled code for younger workers, and would be Exhibit A for a disparate impact claim.
Or, as the Forbes article mentions, VC makeovers, that is, swapping out a 60-year-old COO for a shiny 32-year-old “thought leader. Then there are terminations because a 55-year-old VP no longer “fits the evolving culture.”
DON’T say the quiet part out loud.
They can all lead to claims.
Friends, younger does not mean better. Relying on “energy,” “adaptability,” or “marketable image” instead of actual, objective KPIs invites the inference that younger automatically equals better.
Employer Takeaways
I have to hand it to Forbes and its Council Member author. This article addresses many real concerns and pitfalls that employers fall into. So what should employers do?
1. Audit your lingo. Scrub your job postings, performance reviews, and re-org decks for age-coded terms (“young blood,” “digital native,” “high-energy,” etc.).
Let’s put it this way: if you wouldn’t write “no women need apply,” don’t put “recent graduate preferred.”
2. Data, not decades, should drive decision-making. Use documented, role-specific KPIs for promotions, layoffs, and succession planning. If you can’t explain the decision without referencing tenure or birthday candles, rethink it.
3. Train the C-Suite—Yes, really. Executives often believe age laws protect other people. Annual refreshers about federal, state, and local anti-discrimination laws, including age, (with real examples, not canned slides) remind execs that the law applies to corner offices too.
Age diversity is not a feel-good corporate social responsibility initiative; it is a statutory requirement with teeth, treble damages, and reputation risk.
Treat your seasoned talent like the competitive advantage they are or the next “fresh perspective” your company gets may be from a jury box.