Age discrimination occurs when an employee or applicant is treated less favorably than similarly situated employees or applicants because of his or her age.

​The Age Discrimination in Employment Act (ADEA) prohibits such discrimination of anyone 40 years of age or older, although some states have laws that protect younger workers as well. For more information about the ADEA and age discrimination generally, see our related blog here.

One of the critical elements of an age discrimination claim is that the employee or applicant was subjected to an adverse employment action because of his or her age. In other words, the plaintiff must show that, but for his or her age, the adverse employment action (termination, demotion, failure to hire, etc.) would not have occurred.
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Because the plaintiff carries the burden of proof in age discrimination cases, the more direct or circumstantial evidence of discrimination an employee can introduce, the more likely he or she is to prevail. Below is a list of just a few examples of what may constitute direct or circumstantial evidence of age discrimination in both the hiring process and the workplace:

Most employers know that making explicit comments, jokes, or insults about an employee’s age can result in legal trouble, so direct evidence in age discrimination cases is quite rare. Courts typically only find a statement to constitute discrimination when it references age in a derogatory or stereotypical way or when the statement shows a desire to replace older employees with younger employees.

Commenting on an employee’s eligibility for retirement does not reference age in a derogatory or stereotypical way or show a desire to replace older employees with younger employees, but an employer telling an employee “you’re too old” or that there is a “graying of the sales force” may.
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However, courts have distinguished so-called “stray remarks” unrelated to the adverse employment action or not made by decision-makers from the type of blatant comments required to show actionable discrimination. Decision-makers encompass only those responsible for the adverse employment action, so comments by co-workers or statements not related to the adverse action are not evidence of age discrimination.

​Employers sometimes try to persuade older employees to retire even when they have not indicated to management a desire to do so. Employees may be offered retirement packages or told that a reduction in force is imminent and that retirement would be an optimal alternative to termination. Employers may even pressure or force employees to retire, which may constitute an adverse employment action.

​All employees, regardless of age, should be treated equally. If an employee can show that he or she receives discipline for conduct that younger employees do not, or that he or she receives discipline for groundless reasons, this may establish a prima facie showing of age discrimination.

​Similarly, if an employee 40 years of age or older is demoted and replaced by a younger employee, or denied a promotion given to a younger employee, he or she may also establish a claim of discrimination if the employee can overcome the given business justification for the employer’s actions.

​As with most evidence in age discrimination cases, the person or persons engaging in the discriminatory conduct must be a decision-maker, meaning a supervisor or manager. If an employer is excluding an employee over the age of 40 from meetings or decisions or isolating them from co-workers or members of their department, that employee may have evidence of discrimination.

​Employers sometimes try to cover up a termination or demotion by saying the employee’s position has been eliminated. Sometimes the position is given a different role or title despite the job responsibilities remaining the same, again in an effort to conceal the employer’s true motive. If a younger employee assumes the role, this may evidence discrimination.

Employers may try to deter older applicants by placing restrictions on maximum years of experience for a position or specifically asking for recent college graduates.

​Employers are prohibited from asking about an applicant’s age during the interview process, although they may ask for an employee’s date of birth in the job application when there are legitimate reasons for needing the information such as to conduct a background check or to ensure compliance with a minimum (or maximum, in rare cases) age requirement for the job. Nonetheless, employers are prohibited by the ADEA from using an applicant’s age as a basis for rejecting them.

An employee’s first step in pursuing an age discrimination claim is to file a formal complaint with his or her employer’s Human Resources department or through a similar employer grievance procedure. The next step should be to consult an employment law attorney that can advise the employee on the applicable state and federal law. If the employer retaliates against the employee after reporting discrimination, that will constitute a separate action that an employment attorney could likewise assist with.
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Once it is time to fight the practices of age discrimination, the most important thing an employee can do to protect their rights is to document every instance of potential discrimination along with any witnesses. Employees carry the burden of proof, and there is rarely direct evidence of discrimination, so it is imperative that employees are equipped with as much information as possible when pursuing a claim against employers with Human Resources departments and personnel prepared to do the same.

​The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.

The numbers behind sexual harassment in the workplace in the U.S. are staggering. In Fiscal Year 2020, more than 6,500 sexual harassment claims were filed with the EEOC, and it is widely known that sexual harassment in the workplace—much like sexual assault—is under-reported by employees.

The Society for Human Resource Management (SHRM) survey found that 11 percent of non-management employees said they had experienced some form of sexual harassment in the past 12 months, yet 76 percent of those said they did not report it for reasons including fear of retaliation or a belief that nothing would change.

Although most employers have a policy on sexual harassment and a complaint and grievance procedure for victims of harassment in their workplace, some employees are not aware of it, and many policies and procedures inadequately prevent harassing conduct. Employers ultimately bear high costs in defending sexual harassment actions. In 2019 alone, employers paid out $68.2 million to employees alleging sexual harassment violations.
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With the sweeping power of the #MeToo movement encouraging victims to share their stories and the consequences employers and perpetrators now experience when sexual harassment allegations come to light, the landscape of harassment law is bound to change—and hopefully for the better.

​If an employee does experience sexual harassment, there are several important factors to keep in mind.

Sexual harassment is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

The U.S. Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” that interferes with one’s employment or work performance or is so frequent and severe that it creates a “hostile or offensive work environment.” Simple teasing, offhand comments, or isolated incidents may not be considered actionable harassment.

The victim, as well as the harasser, may be a woman or a man, and the victim does not have to be the opposite sex from the harasser. The harasser may be the victim’s supervisor, an agent of the employer, a supervisor in another department, a co-worker, or a non-employee vendor or customer. The victim can also include anyone affected by the offensive conduct, but regardless the harasser’s conduct must be unwelcome. The victim does not have to suffer economic injury or discharge for the harassment to be actionable.

Under Texas law, sexual harassment at work is addressed by the Texas Workforce Commission (TWC).

The law applies to private employers with 15 or more employees as well as government and labor organizations. Similar to the EEOC’s definition, the TWC holds that sexual harassment “can be unwelcome advances, requests for sexual favors, or physical touching of a sexual nature.”

Victims of sexual harassment in the workplace have several options for initiating a sexual harassment claim:

• Go through the complaint and grievance procedure maintained by his or her employer.
• File a claim with the state Texas Workforce Commission’s Civil Rights Division (TWC-CRD)
• File a claim with the federal EEOC.

Filing a claim with both agencies is unnecessary but permissible as long as the employee indicates to one of the agencies that he or she wants it cross-filed with the other agency.

There are strict deadlines in which employees must file their sexual harassment charge. To preserve a claim under state law, an employee must file with the TWC-CRD within 180 days of the alleged harassment. The deadline for filing an EEOC charge is 300 days after the last date of alleged harassment.

​Although an employee may wish to consult an attorney prior to filing a claim, it is not necessary to have an attorney file a claim with either agency, and the employee should be careful not to miss the stringent deadlines to file.
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If sexual harassment escalates to sexual assault or rape, such harassment goes beyond workplace discrimination and should be reported to the police or other law enforcement agencies as a criminal act.

Once the charge is filed, the EEOC will return a copy of the charge with a charge number, and within 10 days, the EEOC will also send a notice and a copy of the charge to the employer.

The EEOC may:

• ask both parties to take part in mediation.
• ask the employer to provide a written response to the charge before giving the charge to an investigator.
• dismiss the charge if it is untimely filed or the EEOC does not have jurisdiction.

If, at the conclusion of the EEOC’s investigation, it determines that sexual harassment did not occur, the charging party will be given a “Notice of Right to Sue,” which permits the employee to file a lawsuit.

If, however, the EEOC determines sexual harassment did occur, the agency will try to reach a voluntary settlement with the employer, and if a settlement cannot be reached, will refer the case to either the EEOC’s legal staff or the Department of Justice to determine whether the agency should file a lawsuit on the employee’s behalf.

​If the EEOC decides not to file a lawsuit, the employee is given the “Notice of Right to Sue.”

Sexual harassment claims may be brought in either state or federal court, although a case filed in state court under federal law such as Title VII may be subject to removal to federal court if the employer requests to move the case.

On the campaign trial, President Biden vowed to be the most “pro-union” president in U.S. history. He issued his support for the Protecting the Right to Organize Act (PRO Act) and his platform contains numerous union-friendly policies including promises to enact financial penalties on companies that interfere with organizing efforts and to provide public sector employees a federal guarantee to organize. He even released a video on March 1 announcing his support for Amazon workers in Bessemer, Alabama pushing to unionize.

Within mere hours of taking office, President Biden delivered on that promise by fired the Trump-appointed National Labor Relations Board General Counsel Peter Robb after he refused the administration’s call for him to resign. The general counsel investigates unfair labor practice charges, brings administrative complaints before the Board, and represents the agency before federal courts.
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Robb had less than 10 months left in his four-year term, but unions had been urging President Biden to break with precedent by forcing him out immediately. Under Robb’s management-oriented leadership, the Board had rendered countless aggressively pro-business decisions and memorandums, which led to the first Board general counsel to be forced out in more than half a century—and the first to be fired in Board history.

Deputy General Counsel Alice Stock briefly assumed the role of acting general counsel the following day, but she was also terminated at the end of the day. President Biden then named Peter Sung Ohr, a career employee of the Board, as Acting General Counsel, who quickly worked to undo many of Robb’s policies, stating he did not plan on being a “potted plant” while serving his temporary post. Some employers have begun asserting legal challenges to Ohr’s authority, but the Republican-controlled Board on March 1 turned down an opportunity to determine whether Ohr was legitimately appointed.

In Memorandum GC 21-02, Ohr emphasized the policy of the Act is to encourage collective bargaining and protect workers’ rights to organize and rescinded 10 of Robb’s General Counsel Memoranda, determining “that a number of outstanding General Counsel Memoranda are either inconsistent with the above-described policies and/or Board law, or are no longer necessary.” He concluded GC 21-02 by promising to issue future memoranda setting forth additional new policies in the near future.

President Biden announced in February that he would nominate Jennifer Abruzzo, a lawyer for Communication Workers of America, to serve as permanent general counsel for the Board. Abruzzo previously served as deputy general counsel and acting general counsel at the Board. Her nomination was sent to the Senate on February 17, but a confirmation hearing has not yet been scheduled. Management-side lawyers are already preparing to fight her nomination, likely arguing an act taken before Robb’s term would have expired in November is unenforceable. 
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In addition to Robb’s removal, the President named Democratic Board member Lauren McFerran to head the Board, taking over from member John Ring, the Republican Chairman since 2018 who likewise pushed a pro-business agenda in the Trump administration. The fifth seat, reserved for a Democrat, remains vacant, however, so McFerran is still outnumbered 3-1 by Republicans on the Board.

Along with the vacant seat, President Biden will also have the opportunity to fill Member William Emanuel’s seat when it expires in August of this year.

​Both appointments will require Senate confirmation, but once they are filled, the pro-business agenda of Trump’s Board will be replaced with a pro-union majority and General Counsel under an administration committed to protecting and expanding workers’ rights in the U.S.

Are you concerned about a situation your national labor organization is currently facing?

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​The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.

The Texas Labor Code Chapter 21 and the Age Discrimination in Employment Act (ADEA) forbid private employers with 20 or more employees; labor organizations with at least 25 members; and federal, state and local governmental entities regardless of their number of employees from discriminating against people who are age 40 or older. Independent contractors and military personnel are not covered by these laws.

Employers thus commit an unlawful employment practice if, because of age, they fail or refuse to hire an individual, discharge an individual, or discriminate in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment. Employees bear the burden of proving they were discriminated against because of their age.

To prove discrimination, the employee must show that he or she was:

• 40 years or older
• qualified for the position
• terminated by the employer
• replaced by someone “significantly” younger. Most jurisdictions have held that age differences of less than ten years are not significant enough to meet this burden.

If the employee does establish all of these elements, the burden then shifts to the employer to produce evidence of a legitimate, non-discriminatory reason for the termination. The employee must then prove that the employer’s non-discriminatory reason was merely a pretext for age discrimination. This requires producing evidence both that the stated reason was false, and that discrimination was the real reason.
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Employees may also prove discrimination through a hostile work environment claim by showing:

• they are 40 years old or older.
• they were subject to unwelcome harassment based on age that affected a term, condition, or privilege of employment.
• the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment.
• the employer knew or should have known of the harassment and failed to take proper remedial action.

It is generally unlawful for an employer to include age requirements or limitations in job notices or advertisements. In addition to state and federal labor laws, the Older Workers Benefit Protection Act (OWBPA) further protects employees from discrimination based on age during the application process, employment relationship, and termination process.

Specifically, the Act prohibits employers from using age as grounds for termination, targeting older workers in reduction in force programs, and forcing older workers to waive age discrimination claims without consideration.
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However, state and federal laws do not specifically prohibit an employer from asking an applicant’s age or date of birth, and employers are free to ask an employee’s age once they are hired if the information is needed for a lawful purpose.

​Additionally, an employer may specify an age limit when age is shown to be reasonably necessary to the operation of the business. For example, an employer may discriminate against employees under the age of 21 when hiring workers to sell alcohol to customers.

Yes, although the waiver is subject to certain requirements. To be valid, the waiver must:

• be in writing.
• specifically refer to ADEA rights or claims.
• not ask you to waive rights or claims that may arise in the future.
• be in exchange for valuable consideration in addition to anything of value to which you are already entitled, such as a larger severance package or additional benefits.
• advise you in writing to consult an attorney before signing the waiver.
• provide at least 21 days for you to consider the agreement and at least 7 days to revoke the agreement after signing it.

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For this reason, it is imperative that employees carefully read the terms of their employment contract and employee handbook to ensure they do not waive their rights under the ADEA.

​The information you obtain on rodtannerlaw.com or through any link on this site is not, nor is it intended to be, legal advice. Every legal situation is different and you should consult an attorney for individual advice regarding your own situation. Please see the Terms of Use for more information.