Age Discrimination

Rob Wiley: My name is Rob Wiley and today I'm speaking with Austin lawyer Colin Walsh about age discrimination. Colin, what protections do older workers have in terms of protecting their employment and their job?

Colin Walsh: An employee cannot be fired simply because of their age. If an employee's over the age of 40 then it would be against the law to fire them because they're over the age of 40.

Rob Wiley: Well let me ask you this question. Let's say that you have a situation in which you have and somebody's who fairly senior in management folks that are in their maybe 50s or 60s and they're being replaced by people that are in their 40s, everyone's over 40. Could that still be an age discrimination violation?

Colin Walsh: That definitely could be age discrimination. Employers try to make that argument all the time. They only fired all of the older workers so it couldn't possibly be age discrimination because they fired everybody, or because we fired all of the 60-year olds but retained all of the 50-year olds or the 40-year olds. Those are all potential age discrimination claims that you should talk to an attorney about.

Rob Wiley: Well in one way that we sometimes see age discrimination cases come up is in the context of a layoff where the employer goes through, and it's not just laying one person off but laying off a whole lot of people and they're saying well we're just going in a different direction or we're restructuring. When should someone who is an older worker be concerned if they are put into a layoff?

Colin Walsh: Well you're right but that is a very common way that age discrimination happens today. And the government recognize that and they passed what's called the Older Workers Benefits Protection Act. And under that act an employee who is a part of a mass layoff an older worker is entitled to know who else was part of that mass layoff including their job title and their age and how many other people were part of that. If an employer doesn't provide that information that certainly raises suspicions that age was a factor in that layoff.

Rob Wiley: And if it looks like it's targeting older workers there's statistical analysis, there's different ways that you can look at it to find out if in fact, that layoff is targeting older workers. Well sometimes it's not just the layoff but it's something more specific that's done to an individual person. What are some of the touchstones or some of the ways that you've seen age discrimination arise in the workplace?

Colin Walsh: Well there's a lot of ways that we see it. So a lot of companies they won't come out and say you're being fired because you're old although that does happen sometimes. Most of the time we see code words being used. We want new blood, fresh blood, a new energy. You're old fashioned or you're out of touch you're a dinosaur, we want more energy. Indicative of age discrimination because more than likely that employer is replacing you with a younger employee because they're going to allege that a younger employee, just by being younger, has more energy, is more in touch. And so you should really talk to an employment attorney whether these things have been happening.

Rob Wiley: Well and another way that sometimes I see age discrimination arise is in training. You know an employer has a younger employee and so they suddenly start investing resources and training and things like that in that younger employee but they'll have someone who's in their 50s or their 60s and they just aren't investing the same amount of training and then that has an effect on that person's ability to continue performing their job or to be able to qualify for promotions, or ultimately then being selected for a layoff if a layoff comes around. Last thing about age discrimination. As I understand it it doesn't apply to all employers. You have to be a particular size. Is that true?

Colin Walsh: That is true. You have to have over 20 employees in order to be protected under the Federal Age Discrimination Employment Act. In Texas; however, it's only 15 employees. So you do have more protections against age discrimination here in Texas. But an employment lawyer's going to be best able to handle these questions about whether or not that particular employer is covered.

Rob Wiley: Thank you, Colin.

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