Age Discrimination, Harassment and Retaliation
If you’re over the age of 40 and think you’ve been treated less favorably in the workplace, you have rights. Read on to learn the top 3 things you need to know about age discrimination.
Age discrimination is unlawful at both the state and federal level in Texas. In fact, the Texas Labor code expands upon the federal Age Discrimination in Employment Act, making the regulations applicable to employers with 15 or more employees (the federal law only applies to employers with 20+ employees).
To enable older workers to work as long as they see fit, Congress and the Texas Legislature enacted several important regulations to protect persons over the age of 40. This article outlines the purpose and scope of those protections.
If have been experiencing issues at work, such as discrimination, wrongful suspension, or wrongful termination, contact us for a free consultation with our legal team.
The Age Discrimination in Employment Act of 1967: Congressional Intent
Congress enacted the Age Discrimination in Employment Act (ADEA) more than 50 years ago because they recognized that older workers are often disadvantaged in their efforts to retain employment and regain employment when they lose a job.
At that time, many employers were setting arbitrary age limits on jobs, essentially forcing workers to retire once they reached a certain age. As a result, older workers were frequently under-employed and faced a decline in skills and morale in the workforce. At the same time, with rapid advances in medical technology and healthcare, Americans were living longer, healthier, and more productive lives. The outdated practice of setting age limits for employment purposes no longer made business and economic sense.
According to the EEOC, age discrimination involves treating an applicant or employee less favorably because of his or her age. The law protects people age 40 and older, although some states have laws that protect younger workers from discrimination. Texas laws nearly mirror the ADEA, protecting older workers once they turned 40.
Unlike other anti-discrimination laws, the ADEA does not prohibit “reverse discrimination.” That means it is perfectly legal for an employer to favor older workers over a younger worker, even if both workers are over the age of 40.
As Texas employee rights advocates, one of the most common questions we’re asked is, “what exactly does ‘less favorable’ treatment mean?”
Therein lies the million-dollar question. “Less favorable treatment” is broadly defined to include unfair treatment with respect to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, and benefits. To put it simply, unfair treatment with respect to any term or condition of employment can land an employer in hot water.
Even employment policies that apply to every employee, regardless of age, can be illegal if they have a negative impact on applicants or employees aged 40 or older. There are some very narrow exceptions to this rule, such as when the employment policy is based on a “reasonable” or “bona fide occupational qualifier” other than age.
Because of the ADEA’s requirements, employers cannot include age preference, limitations or specifications in their job notices or advertisements. While it is not explicitly prohibited by the Act, employers shouldn’t ask an applicant’s age during the interviewing process either. Employers may need to know an employer’s date of birth after hiring in order to comply with other laws, but they do not have a reasonable justification for asking for this information prior to hiring. If you are asked your age during the interview process, you are fully within your rights to deny age information until after hiring.
When an employer violates the ADEA, they can be liable for a worker’s attorney fees, lost wages, compensatory damages (money to cover other losses beyond wages) and punitive damages. This means ADEA violations could lead to significant financial losses for employers. This may be why 5-10% of ADEA claims end in settlement before the EEOC ever reaches a resolution.
If you are over 40 and feel you’ve been treated unfairly due to your age, it’s important to consult with an experienced employee rights attorney as soon as possible. Employees only have 180 days after a qualifying incident occurs to file a charge with the EEOC, and Federal employees only have 45 days to contact an EEO counselor, so time is of the essence.
Most people are reluctant to contact an attorney because they are unsure whether they have an actionable claim and they fear costly consultations. At Jackson Spencer Law, we offer free consultations to our Texas clients and analyze their chances of success during the initial meeting. While no attorney can offer guarantees of success, our attorneys can appraise your chances during a consultation, so that you can make an informed decision whether or not to proceed.
The ADEA is not the only law protecting older workers. The Older Workers Benefit Protection Act of 1990 (OWBPA) specifically prohibits employers from denying benefits to older employees. Years after the ADEA was enacted, employers were using loopholes in the ADEA to deny benefits like insurance, retirement, and vacation to older employees. Congress acted to prohibit this new form of age discrimination through the OWBPA. If an employee over the age of 40 discovers they aren’t being offered the same benefit terms as younger employees, they may have an actionable charge under the OWBPA.
The ADEA also makes it unlawful to harass a person because of their age. Harassment may include derogatory remarks or offensive behavior that is so severe it creates a hostile or offensive work environment. As with any other form of harassment protection, employers can be liable for the harassing behavior of management, supervisors, co-workers, and even customers or clients of a business. If a customer or client consistently engages in harassing behavior and the employer is notified and fails to act to prevent further harassment, they can be held liable for their inaction.
Like most anti-discrimination laws, the ADEA protects employees from retaliation. An employer is legally prohibited from retaliating against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding or litigation under ADEA.
Thanks to Congress’s foresight, older workers have rights and protections in the workplace.
If you’re over 40 and think you’ve been discriminated against, harassed, or are facing retaliation due to your age, contact Jackson Spencer Law to schedule a free consultation today. We’re Texas employee rights advocates and we aren’t afraid to fight for your rights, no matter how powerful your employer may seem.