Age Discrimination

Employment Attorney Kerry O'Brien

Protecting Employees and Job Applicants Age 40 and Older

First – know that age discrimination laws only cover employees that are 40 years of age or older. If you are 39 or younger, the law doesn’t protect you against age discrimination.

With that said, if you are 40 years of age or older, you are protected against age discrimination by federal and Texas state law. The federal Age Discrimination in Employment Act of 1967 (ADEA) protects certain applicants and employees 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment. Texas law generally matches that protection. The primary difference between the federal and state laws, as they are specifically worded, is that the ADEA only covers employers with 20 or more employees. Texas law covers employers with 15 or more employees.

Age discrimination is not uncommon. It can come from perceptions that an older employee is no longer “useful” as they get older. It can be more prevalent in certain industries, such as tech companies or labor-intensive positions. It’s not uncommon for some tech managers and executives to push for hiring new engineering graduates who can be hired more cheaply and are perceived as more “pliable” to the company’s demands and expectations — such as the demand to work excessively long hours. Some employers may have the opinion that “it’s time for you to move on” because of your age, even when it’s not affecting your work ability or production. Some companies or industries may try to skew toward hiring younger workers for appearance purposes, like tech retail sales. Here at the O’Brien Law Firm, we’ve seen it all.

Only occasionally do we have direct evidence that a company is discriminating against someone because of their age. Direct evidence can be comments such as “it’s time to put John out to pasture”, “this is a younger man’s job”, or “I don’t need you – I need to a strapping young lad to do this work.”  It can also be regular, repeated insults to you because of your age – “old man”, “old fart”, “the old guy.” (These examples come from actual cases that the O’Brien Law Firm has handled.)

And sometimes it comes from circumstantial evidence – evidence that suggests that age is a factor without anyone saying so explicitly. There aren’t any comments, but the department manager just terminated the two oldest employees on the team and replaced them with employees who are 25 years younger and much less qualified. Or maybe the company held an older employee to a stricter performance quota than younger employees in the same position. Or maybe the company gave younger employees in their 30s more opportunities to correct their performance and more leeway than the employee in her 50s. These are the types of situations that the O’Brien Law Firm handles on a regular basis.

All age discrimination claims in Texas must first go through the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission Civil Rights Division (TWC-Civil Rights Division). That process starts with the employee or job applicant filing a Charge of Discrimination with either agency. This is something we handle for our clients regularly. There are two different filing deadlines: EEOC claims must be filed within 300 days of the discriminatory event, but TWC-Civil Rights Divisions claims must be filed within 180 days of the discriminatory event.

EEOC cases in the Austin and San Antonio areas are filed with the EEOC San Antonio Field Office. Dallas cases are filed with the EEOC Dallas District Office. Houston cases are filed with the EEOC Houston Field Office. The O’Brien Law Firm handles claims in each of these field offices regularly.

Does it matter which agency you file with? Well, if you timely file with the TWC-Civil Right Division (the 180-day deadline), you can request “dual filing” with the EEOC. That means you’ve filed with both agencies. Then, when you eventually have the right to sue the employer (after the EEOC process is complete), you will have the option of filing your case in either federal court, or a Texas state court. This difference can make a significant difference to an experienced employment attorney. If you file your claim with the EEOC only, between 180 and 300 days after the discriminatory event, your only option will be federal court.

In fact, because of federal court cases interpreting the ADEA, it is currently usually more beneficial to be able to file in Texas state court. Federal cases currently hold that in an ADEA case, age must be the “but for” reason for the discriminatory action – it would not have occurred “but for” the employee or job applicant’s age. Some courts will (mistakenly) interpret this as the employee needing to show that age was the “sole cause” for the termination. With Texas court cases, it appears that they still only require that age be a “motivating factor” in the termination – one reason that may be among other, work-related reasons. So you can see why being able to file in state court can have its advantages.

And that’s why, if you believe you’ve been discriminated based on your age over 40, you should get in touch with a board-certified employee rights attorney promptly.

And sometimes, you have been presented with a severance agreement, where for a certain payment, you are being asked to waive your right to sue the company. Once you waive that right to sue the company, you have likely missed your opportunity to enforce your rights if age was a reason why they were forcing you out. In addition, federal law normally requires the employer to include certain language under the Older Workers Benefit Protection Act for you to have properly waived your age discrimination claims. So if you have been presented with a severance agreement and making the right decision on whether to sign it, not sign it or negotiate is important to you, get a board-certified employee rights attorney to review it for you. O’Brien Law Firm does employment agreement reviews every week for a modest flat equal to around one hour of the attorney’s time.

Call us NOW at (512) 410-1960, set up a FREE phone consultation or fill out the form below. Your information is confidential and goes directly to attorney Kerry O’Brien. We’re here to make things right for you.

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