Age Discrimination in Employment

Employees in Texas are protected from discrimination in employment based on their age.  However, there are certain limitations to these protections.  One of these limitations that may come as a big surprise to many is that the anti-discrimination laws related to age only apply to employees over the age of 40.  Under the law, there is no legal claim for age discrimination if an employee believes he is being harassed or treated unfairly because he is too young.  Conversely, employers do have the right to give preference to older employees/applicants based on age.  Under State law, age discrimination in employment is prohibited under Chapter 21 of the Texas Labor Code.  Under federal law, it is the Age Discrimination in Employment Act (ADEA) that prohibits discrimination against an employee because of his or her age.  While the Texas Labor Code applies to employers with 15 or more employees, the ADEA only applies to employers with 20 or more employees.

Can an employer ask me about my age?

While there is no explicit prohibition under State or federal law against an employer asking an applicant for her age or date of birth, these questions can potentially evidence a discriminatory intent.  If an employer needs an employee’s age or date of birth for a lawful purpose, the employer can always ask the individual after she is hired for the job.  To show age discrimination based on application questions, an applicant is generally going to need to show more than just:

  • The application asked for the individual’s age
  • The applicant did not get hired for the job

For example, there might be a much stronger case if the applicant can show that the employer regularly passed up on applicants that are over the age of 40 and hired younger employees in that particular position.

What constitutes age discrimination in employment?

There is no giant list that outlines each and every situation that constitutes age discrimination.  Generally speaking, the law prohibits an employer from discriminating against an employee with respect to hiring, firing, pay, promotions, layoffs, benefits, or any other term or condition of employment.  One of the most common scenarios involves negative comments or jokes being made about an employee’s age (e.g. “old man” or “grandpa”).  In evaluating a potential age discrimination claim, you want to look at:

  • The frequency of the discriminatory comments
  • If the comments preceded and/or relate to an employment action being taken against that employee

If the comments are being made on a daily basis, then the situation may rise to the level of creating what is referred to as a hostile work environment.

If you believe that you may be terminated or laid off because of your age, it is important to reach out to an employment attorney and discuss your legal rights.  There may be certain steps that you can take to prevent your employer from moving forward with the termination.  If your employer has already offered you a severance agreement that includes a waiver of your rights under the ADEA, they are required to give you at least 21 days to consider the agreement (45 days if it is part of a layoff).  Additionally, if you have a potential age discrimination claim, you may have an opportunity to negotiate the severance that you have been offered; but time is of the essence.


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