Which state and federal laws protect employees from age discrimination?
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.
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.
The Age Discrimination in Employment Act (ADEA) protects people age 40 or older.
What must an employee show to meet his or her burden?
To prove discrimination, the employee must show that he or she was:
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.
Employees may also prove discrimination through a hostile work environment claim by showing:
- 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.
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.
When may an employer lawfully consider age in employment?
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.
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.
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.
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.
An employer may specify 21+ only when hiring a bartender who will sell alcohol to customers.
Can employees waive their rights under the ADEA and the OWBPA?
Yes, although the waiver is subject to certain requirements. To be valid, the waiver must:
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.
- 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.
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.
Always read the terms of your employee contract and handbook to make sure you don't accidentally waive your rights under the Age Discrimination in Employment Act (ADEA).
Are you experiencing age discrimination in your workplace?
Do you have questions about the terms of your employment contract?
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Do you have questions about the terms of your employment contract?
We're here to help.
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