Workers over 40 are protected in Texas

old manIf you are age 40 or over, you are protected from age discrimination under Texas Labor Code Chapter 21, as well as the federal Age Discrimination in Employment Act (ADEA). By law, a Texas private employer with a minimum of 15 or more employees is covered by state law. All state and local governmental entities are covered by state law, regardless of how many employees they have. The ADEA applies to employers with a minimum of 20 employees in 20 or more weeks of the current or prior year. Neither Texas nor federal law protects younger workers from age discrimination.

Age discrimination includes any adverse employment decision taken against you due to your being 40 or older. Employment decisions include hiring, firing, promotions, and demotions, as well as refusing to allow someone to be trained or participate in some other privilege of employment. It is illegal for employers to include age requirements in their job notices, except when they can show an age lower than the limit is reasonably necessary to operating the business. For example, a police department may set an upper limit on the age you can be to do a particular position that requires more physical ability.

It can be hard to determine whether you’ve been subjected to discrimination based on your age. Sometimes, an employer makes comments about wanting fresh faces or critiques older workers in order to nudge older workers to take a retirement or quit. These types of comments and criticisms may be used to show age discrimination, if soon afterward you are terminated or denied a promotion. While there’s no prohibition against being asked your age or date of birth in a job interview, the question could show intent to discriminate. Usually, when age information is necessary, an employer waits to ask until after the employee is hired.

Sometimes an employer offers a severance package to a worker whom it has laid off. As part of that package, you might be asked to sign a settlement agreement that asks you to waive your rights under the ADEA and Chapter 21 in exchange for severance pay or some other incentive. Under the ADEA, there are certain minimum standards the employer must follow when asking you to waive your rights. If the employer doesn’t meet those standards, your waiver may not be considered knowing and voluntary and will not be enforced.

Among other things, the waiver needs to be in language easy to understand, reference the ADEA specifically, advise you to talk to an attorney first, provide valuable consideration on top of whatever you’re already owed, not ask you to waive rights that arise in the future, and provide you, as an individual, at least 21 days to consider the agreement and seven days to revoke your agreement after signing it.

It can be extremely challenging to establish age discrimination. For example, the Supreme Court let stand a lower court ruling in which a man had applied to be a sales manager at a tobacco company in 2007 when he was 49. He got no response and later learned that the company had internal rules stating an ideal candidate was just 2-3 years out of college and disfavoring applicants who had 8-10 years of sales experience. He made a disparate impact claim.

The lower court dismissed his disparate impact claim, ruling that he hadn’t diligently pursued the reason he hadn’t been called back about his job application and saying only existing employees rather than job applicants were protected against disparate impact age discrimination under the ADEA. Often, employers justify their decisions by stating that they relied on a reasonable factor other than age. This ruling cuts against EEOC guidance, stating that both employees and job applicants are covered by the ADEA.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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