What to Do After Age Discrimination

Reviewed by Tess Holloway (TH), Editor-in-Chief — Employment Law & Age Discrimination Practice. Updated May 2026.

The period immediately after an age discrimination event is critical for preserving your legal rights. Two deadlines dominate everything else: the EEOC charge deadline (180 or 300 days from the discriminatory act) and the need to gather and preserve evidence before it fades, is destroyed, or becomes inaccessible. This guide covers the specific steps to take — roughly in the order they should be taken — after you believe ADEA-covered discrimination has occurred.

Step 1: Document Immediately and Thoroughly

Contemporaneous documentation is the foundation of an age discrimination case. Courts credit records made at the time of events far more heavily than reconstructed accounts created when litigation is already in progress. Your memory of specific dates, exact words, and the sequence of events will fade significantly over months or years; what you write down in the first days and weeks will be far more reliable in a deposition or trial setting.

What to document: the complete timeline of events leading up to the adverse action — any earlier age-related comments by supervisors or decision-makers, changes in your assignments or responsibilities, the specific circumstances of the adverse action itself (exact date, who told you, exactly what was said, who was present, what reason was given); all performance documentation you can access, especially recent positive reviews that contradict a performance-based justification; any written communications (emails, texts, memos) referencing your age or reflecting age-related bias; any comments from colleagues about the employer’s attitude toward older workers; and the identities and approximate ages of colleagues who were retained while you were terminated (or who received the promotion you were denied).

Where to store documentation: on personal devices and personal cloud storage that you control independently of your employer. After termination, you typically lose access to company email, shared drives, and internal systems immediately. Download and save all relevant documents before separation if you can, while being careful not to take confidential business information to which you are not entitled — a line that can affect the merits of your case and your credibility.

Step 2: Preserve Comparator Evidence

ADEA disparate treatment cases turn significantly on comparator evidence — showing that substantially younger employees in similar situations were treated more favorably. The best comparator evidence is gathered while you still have access to information about your colleagues’ situations: their approximate ages, their performance records, their job duties, and whether they were retained, promoted, or otherwise treated differently in the same circumstances that produced an adverse action against you.

Gather while you can: the names and positions of colleagues who might serve as comparators; your approximate knowledge of their ages and tenure; whether they had similar performance histories or qualifications; and whether any decision-makers made comments about the general workforce that suggested age preferences. Also note the age of whoever replaced you in your role — this is often the most significant single fact in a disparate treatment claim, particularly when the replacement is substantially younger than you and has less experience.

Once you are separated from the employer, formal discovery through litigation is the mechanism for accessing personnel records, performance reviews, and demographic data about retained employees. But you need to know what to ask for before discovery begins, and that requires the groundwork you lay now about who the relevant comparators are.

Step 3: File an EEOC Charge — Watch the Deadline

Filing an EEOC charge is a mandatory prerequisite for ADEA litigation against a private employer. The charge must be filed within 180 days of the discriminatory act, or within 300 days if the state where the discrimination occurred has a fair employment practices (FEP) agency. Most major states and many localities have FEP agencies, making the 300-day deadline applicable for most employees — but do not assume the longer deadline applies without confirming that your state qualifies.

The 180/300-day deadline is treated by courts as jurisdictional — missing it almost certainly bars your federal ADEA claim, regardless of how strong the underlying facts are. There are very limited equitable tolling exceptions (the employer actively concealed the discriminatory basis for the action; you were filing in the wrong agency and the EEOC received the charge too late), but these exceptions are narrow and unreliable. File promptly — well before the deadline — rather than waiting to see whether the situation resolves.

How to file: you can file an EEOC charge online at publicportal.eeoc.gov, by phone, or in person at your nearest EEOC field office. The charge must contain: your name and contact information; the employer’s name, address, and the number of employees; a description of the discriminatory acts; the approximate dates; and the protected characteristic involved (age). You can describe the facts in plain language — you do not need an attorney to file the charge, though an attorney can help you present the facts most effectively.

After filing: the EEOC will notify the employer of the charge and typically attempt mediation or conciliation. The EEOC may investigate, which can take several months to years. If the EEOC closes the charge without a determination or resolution, it issues a right-to-sue letter that gives you 90 days to file in federal court. Alternatively, you can file in court 60 days after filing the charge without waiting for the right-to-sue letter.

Step 4: Evaluate State Law Claims

Many states have their own age discrimination statutes that provide protections beyond the ADEA in important respects: lower employer coverage thresholds, no requirement for willfulness to receive enhanced damages, longer statutes of limitations, and in some states, availability of emotional distress damages. California’s Fair Employment and Housing Act (FEHA) covers employers with 5 or more employees. New Jersey’s Law Against Discrimination has no minimum employee threshold. Massachusetts’s MCAD process covers employers with 6 or more employees.

State claims can be filed concurrently with EEOC charges (or after the EEOC process concludes) and may be heard in federal court alongside ADEA claims through supplemental jurisdiction. An employment attorney familiar with your state’s law can advise on whether state claims provide meaningful additional recovery beyond the federal ADEA, and on the applicable state charge filing deadlines (which may differ from the federal 300-day window).

If you have signed a severance agreement waiving age discrimination claims, evaluate whether the waiver meets the OWBPA requirements — 21 days to consider, 7-day revocation period, specific ADEA reference, written advice to consult an attorney, and additional consideration beyond what you were already entitled to. A defective waiver is unenforceable and does not bar your ADEA claim.

Step 5: Consult an Employment Attorney Early

ADEA cases are complex — the but-for causation standard, the willfulness doctrine, the EEOC exhaustion requirement, and the interaction with state law create a legal landscape that requires professional judgment to navigate effectively. An experienced employment attorney adds value at every stage: evaluating the strength of your claim, advising on what evidence is needed, managing the EEOC process strategically, and assessing whether to accept a settlement or proceed to litigation.

Finding an attorney: most employment attorneys who handle ADEA cases work on contingency — they receive a percentage of the recovery only if you win, making representation accessible regardless of your financial situation. State bar associations, the National Employment Lawyers Association (NELA), and the EEOC’s own resources can help you identify qualified employment attorneys in your area. Most offer free initial consultations at which they can assess whether your facts support a viable claim.

Timing: consult an attorney before the EEOC charge deadline, not after. An attorney can help you decide what to include in the charge, how to describe the facts to build the strongest case, and whether to name individual decision-makers as respondents in addition to the employer. Filing a well-constructed charge is significantly better than filing a minimal charge to preserve the deadline and trying to add facts later.

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