In today’s overarching society, the economy remains fragile and its rebound has yet to occur as quickly as spectators projected leaving little room for transition, movement, or job growth. The unemployed pool, therefore, remains unemployed for even longer periods of time. Additionally, some employers are exercising questionable pre-employment practices that raise red flags over potential illegal employment system failures that employees and applicants face. That is, employers overlook well-qualified applicants for open positions based upon age or unemployment status choosing instead to hire younger applicants with a history of continued employment, yet less qualified for the position.
In order for Human Resources personnel to effectively recruit for and hire individuals for open positions, federal, state, and certain local laws must be followed. This impartiality in Human Resources’ decision-making extends to persons over the age of 40 for any employment action. The number of employer-generated violations that emerge, which set the stage for aged-based Charges of Discrimination, continues to rise. Although Human Resources should be aware and well-versed on the consequences for violating the rights of individuals over 40, intentionally or otherwise, employers still discriminate time and time again without being aware of their illegal acts.
For an older worker, engaging in a job search can present as a daunting task. Some employees have worked for one employer for their entire career. When these workers face prospective employers, a new and subtle form of discrimination emerges suggesting age discrimination-usually these individuals are classified as overqualified for a particular job. Comments about background, national origin, or experience by untrained or inexperienced interviewers may enable someone to file a Charge of Discrimination for a “failure to hire” case, discrimination, and retaliation depending on that individual’s particular fact pattern.
This issue is compounded further by sociological trends that favor youth over older people even though there is overwhelming evidence that older people are now living more active and longer lives, mainly due to advances in technology, medicine, healthcare, defined benefit retirement plans, and lifestyle choices. Thirty years ago, the ideal goal in employment for older workers was early retirement. Now, Americans work more. This reversal is attributable to the number of older men and women continuing to work, with the age for retirement in both genders steadily rising.
THE AGE DISCRIMINATION IN EMPLOYMENT ACT
The Age Discrimination in Employment Act of 1967, as amended, (“ADEA”), is the federal law that prohibits age discrimination. It covers employees who are 40 years old or older and to employers with at least 20 employees. The Texas Labor Code contains similar coverage in age discrimination laws, and mirrors the ADEA.
The ADEA simply makes it unlawful for employers to treat an employee age 40 or older worse than her or his younger peers because of the employee’s age. It is not age discrimination simply to treat an older employee badly, however; the employer through a manager or other decision-maker must treat the employee badly because of the employee’s age. Note, in recent case law, this “but-for” causation may not be required. The employer may not make job-related decisions based on age. So, older employees cannot be fired or laid off because of age.
As workplace trends become more modern, virtual, and even remote, age discrimination can be subtle and take many forms. The following are just a few examples of illegal treatment that may indicate age discrimination:
- Refusing to hire. Anyone who is older than a certain age or appears older and not hired.
- Refusing to provide training. Anyone who is not given opportunities for promotion as an older employee.
- Promoting a significantly younger employee. Anyone younger who is promoted over an older employee.
- Firing or laying off. When this is done to the oldest and highest salaried employees before other employees.Forcing older employees to retire.
- Asking about an employee’s retirement plans. In some cases, even suggesting to an employee that they should consider retirement.
- Making comments. So that a preference for youth, like saying “we want a more energetic employee,” “we want young blood around here,” or “we already have a youthful image at this company.”
The ADEA and Texas law also prohibit employers from firing, demoting, harassing, or otherwise retaliating against an employee who complains about age discrimination or “reverse-age” discrimination. Complaining about discrimination could mean, for instance, speaking to a superior or others in an employee’s chain-of-command, filing a complaint with Human Resources, filing a charge with the Equal Employment Opportunity Commission, participating in a related legal proceeding, or any other type of conduct opposing discrimination. Even if the employee is wrong and the conduct is not illegal, the employee may be protected from retaliation if the complaint is based on a “good faith” belief that discrimination occurred.
A retaliation claim is separate from an age discrimination claim. In other words, an employee need not prove that he or she was discriminated against in order to prove retaliation, or to seek reinstatement.
OLDER WORKERS BENEFIT PROTECTION ACT
Additionally, the Older Workers Benefit Protection Act of 1990 (“OWBPA”) also provides some protection for older workers. For example, the OWBPA requires employers to take certain steps when asking employees to release age discrimination claims. Under the OWBPA, it is illegal for employers to exclude older employees from benefits offered to younger workers.
The most common scenario affected by the OWBPA is when an employer lays off employees as part of a Reduction In Force (“RIF”). If an employer fails to provide the required information, the employee maintains an ability to keep the severance amount under certain facts and bring a claim against the employer for age discrimination.
In circumstances where employees who are over 40 years old, fired, and then asked to sign a waiver agreeing not to sue the former employer in exchange for an initial severance pay and other benefits, the OWBPA contains specific provisions that the employer must follow.
For example, in order for the waiver and release to be lawful, the employer must: (1) Make the waiver and release clear to read and understand; (2) State, specifically, that the employee is waiving the right to file a claim or suit under the ADEA; (3) It must advise the employee to consult with an attorney before signing it; and (4) The employee must be given at least 21 days to consider it and at least seven days to revoke it.
Where the employee has signed and accepted it, he or she must be given 45 days to consider it, if a group of employees are also laid off at the same time. Individuals who believe they have experienced discrimination because of their age are encourage to call The Law Office of Nicole Conger, PLLC.
If you believe you are a victim of age discrimination, Nicole can help you negotiate more favorable terms in an exit package or some other form of compensation, or she can represent you in the EEOC process and potential litigation. Please keep in mind that age discrimination laws have short time limits for filing claims and, as a result, it is best to seek legal advice as soon as you can.
MINIMUM NUMBER OF EMPLOYEES
The ADEA and the Texas Labor Code prohibit employers with 20 or more employees from discriminating against employees because of age. So, an employer with less than twenty employees is restricted from discriminating against employee based on age. However, the term “employee” is broadly defined and includes part-time employees and Independent Contractors.
Although Texas follows the “At-will” employment doctrine, both state and federal law prohibit an employer from discriminating against employees because of age. These laws also limit an employer’s ability to retaliate against an employee who opposes age or “reverse-age” discrimination in the workplace.
PROVING AGE DISCRIMINATION IN THE WORKPLACE
It can sometimes be difficult to identify or prove age discrimination in the workplace. The best way to prove age discrimination is to look for patterns where younger employees are treated more favorably than older workers. For example, younger employees are provided coaching, training, and development opportunities that are not offered to older employees. Unfortunately, some employers view older employees as being slow and forgetful and do not see the value and experience older workers bring to the workplace. Because of this, some employers routinely target and terminate older workers in a thinly veiled attempt to discriminate against them because of their age.
While employers are cautiously optimistic about what the future holds, and should be aware of illegal employment practices, there are those who continue to carry out acts of ageism, “discriminatory beliefs, attitudes, and practices regarding older adults as part of their way of doing business.” If you are 40 years or older and have been discriminated against because of your age, contact The Law Office of Nicole Conger, PLLC today. She is eager to discuss and create options, remedies, and damages, depending on where you are in your stage of employment.