Age discrimination is, unfortunately, one of the most common forms of discrimination in the workplace and one of the most difficult areas of employment law. Fortunately, there are State and Federal laws designed to protect older workers from discrimination and discharge because of their age.
The Age Discrimination in Employment Act [ADEA]
The history of the ADEA is interesting. In 1964, congress passed the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex or national origin. The list of protections did not cover age. So, in 1967, congress passed the Age Discrimination in Employment Act, that protects individuals 40 years of age and older. The ADEA applies to employers with 20 or more employees.
Texas Labor Code, Section 21.001
Texas has a similar law that protects workers over the age of 40 and is outlined in the Texas Labor Code. Interestingly, the Texas law applies to employers with 15 or more employees.
Both the federal and state law protects workers over 40 from a variety of employment related situations. These laws prohibit age discrimination related to:
- hiring;
- firing;
- pay;
- job assignments;
- layoffs;
- training;
- benefits;
- and any other terms and conditions of employment.
Examples of Age Discrimination and Harassment
There are many examples of age- related discrimination and harassment and can take the form of direct or circumstantial evidence. For example:
- offensive or derogatory remarks about one’s age
- “you’re too old to work here”
- “when are you going to retire”
- “you are a dinosaur”
- “we need someone younger, with new ideas for the job”
- “you have been working here for a long time, you should think about leaving or quitting”
- asking about ones age on an employment application or during an job interview;
- severe, pervasive and teasing comments about one’s age;
- you fail to get a raise or your performance reviews become negative as you get older
Employment policies or practices that have a negative impact on applicants or employees age 40 or above may also violate Age Discrimination laws. These types of claims are called “disparate impact”—meaning that the policy, procedure or practice has a disparate impact on workers who are 40 years of age or older.
Remedies and Damages
The Federal and State laws differ slightly on the types of damages that may be available to victims of age discrimination.
The ADEA, the federal law, provides the following types of damages:
- lost wages and benefits in the past;
- reinstatement, if terminated;
- lost wages in the future [front pay], if reinstatement is not possible;
- attorney’s fees;
- liquidated damages [an amount equal to past lost wages].
The Texas Labor Code provides for the following damages for an Age Discrimination case:
- lost wages and benefits in the past;
- reinstatement, if terminated;
- lost wages in the future [front pay], if reinstatement is not possible;
- attorney’s fees;
- compensatory damages—including damages for mental anguish and emotional distress;
- punitive damages;
- other costs and fees.
In Texas, there is a cap on the amount of compensatory and punitive damages based upon the size of the employer. If the employer has between 15-100 employees, the cap is $50,000; if the employer has between 100-201 employees, the cap is $100,000; between 200 and 500 employees, the cap is $200,000 and employers over 500 employees, the cap for compensatory and punitive damages is $300,000.
Testimonials
Would definitely recommend Jeff to all who have legal employment questions. Very thorough, direct, and above all honest. Very pleased with him and his staff's services!
Important Time Limitations
There are time limitations to file a complaint, or charge of discrimination with the Equal Employment Opportunity Commission [EEOC], or the Texas Workforce-Civil Rights Division. Charges with the EEOC must be filed no later than the 300th day following the date of discrimination; Charges filed with the Texas Workforce Commission is 180 days after the date of discrimination. These are very short time limitations to file a Charge and failure to timely file will result in waiving all legal claims.
Separation Agreements and Release of Claims
An employer may offer a severance package to an employee, which includes a release of claims, including a release of age discrimination claims. For workers over 40, State and Federal law requires that you would be entitled up to 21 days to consider a release of claims; up to 7 days to revoke any acceptance of the agreement; and a statement that you should consult with an attorney. Simply put, you should not be forced to sign any legal documents “on the spot”, and should be given time to consider your options with an attorney.
Contact Attorney Jeffrey A. Goldberg
If you think you may have been a victim of age discrimination or retaliation, or have questions about the validity of an age discrimination release, contact my office to schedule a free, confidential case evaluation by filling out a case evaluation form or call us today at (210) 690-2200.
Jeffrey A. Goldberg is a Board- Certified Labor and Employment attorney who dedicates his practice to representing employees and executives in employment discrimination and retaliation cases.
We can help you analyze your situation and determine if your employer has acted unlawfully.