Tips to Avoid an Age Discrimination Lawsuit

The Age Discrimination in Employment Act (ADEA) is a federal law prohibiting employers from discriminating against employees and job applicants 40 years old or older on the basis of their age. The ADEA applies to job advertisements, interviews, hiring practices, wages, promotions, disciplinary actions, job evaluations, job assignments, and termination.

For a private business to be subject to ADEA, it must have at least 20 employees. However, the rules outlined by the law should be followed by smaller employers in order to avoid the question altogether. Furthermore, Texas employers are subject to Chapter 21 of the Texas Labor Code which applies the equivalent anti-age discrimination rules to employers with 15 or more employees.

What Constitutes Age Discrimination?

Age discrimination may be seen in the following scenarios:

  • Daily interaction: Seemingly harmless remarks or actions can be discriminatory, so it is important for businesses to be cautious about how supervisors treat and address employees and how colleagues refer to one another. If an employee is regularly called “old man” or “old timer,” a case for age discrimination can begin to take shape. While these nicknames may seem benign, and even endearing, there should be no place for age-based teasing in the workplace.
  • Terminations & Layoffs: At one time or another, many organizations will face the need to downsize. While layoffs may be unavoidable, if they disproportionately affect older workers, the company could face an age discrimination claim.
  • Hiring Practices: Conversely, when hiring and training, age cannot be a listed factor of eligibility. When an applicant attends an in-person interview, any question about their age is also barred.

Could one Instance of Age Discrimination Lead to a Lawsuit?

Perhaps, but it depends.

Using the example from above, calling an employee “old timer” is an illustration of how a small discriminatory comment, which taken in the aggregate, can create big problems. It would likely be quite difficult to prove age discrimination if one colleague on one day in the course of one story used the nickname “old timer,” but if this became a regular occurrence, it could become actionable depending on the surrounding circumstances.

On the other hand, if a company posted a job listing with the qualification that those “45 and older need not apply,” an age discrimination lawsuit would be imminent.

I Understand Discrimination in Hiring, but How Does Age Discrimination Impact Retirement?

Forced retirement is a serious problem facing older workers and can lead to age discrimination actions. In fact, one study found more than 50% of all workers aged 50 and older were losing their jobs due to layoffs and forced retirement.

Creating mandatory retirement ages or changing the responsibilities and compensation associated with a person’s job as they age can trigger age discrimination claims. Age alone cannot be the reason to ask an employee to leave his or her position.

With that said, employers must make staffing decisions that are in the best interest of the company, and that necessarily should be tied to job performance. Having a record of any employee failing to meet the expectations of a particular job creates a solid foundation of termination or retirement decisions for employees of any age.  Employers should also keep in mind that retirement issues can be tricky but employers do have options and approaches they can take.

Presently, courts that have reviewed claims under the ADEA are growing more sympathetic to employers seeking to change the dynamics of the workforce to become more competitive, and with ruling favoring employers, ADEA exceptions have expanded. If you are thinking of making policy changes or if you are facing an age discrimination lawsuit, it is best to speak with a qualified employment attorney to learn how the most recent rulings apply in your case.  Contact Simon | Paschal PLLC at (972) 893-9340 to schedule a consultation.

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