Thering McCarley

Age Discrimination

Generally, discriminating on the basis of age in the workplace is illegal under both the  Federal Age Discrimination in Employment Act (ADEA), and the Texas law.

Under both laws, there are some special limitations on who can sue.

People under forty years old are not protected by age discrimination in the workplace laws.  For  example, if an employer refuses to hire a person because they are thirty-nine therefore "too young",  that is not illegal.  However, it is illegal not to hire a person because they are forty and "too old".

Age discrimination has some special aspects that make it different from other types of employment  discrimination.  A few of these are discussed below.

Sometimes when employers are down-sizing, they lay people off by offering special packages to  employees who agree to take early retirement.  This is not age discrimination.  However, if  employers are offering special packages for retirement for the purpose of getting rid of older  workers because of their age and if it can be shown that there is a real discriminatory motive then  the employers’ actions are illegal.

Replacing Older Workers

It is illegal to replace a person over forty (40) with a person under forty (40), if age is the reason.  It  is also illegal to replace a person over forty (40) with a younger person who is also forty (40).

Older Worker's Benefit Protection Act

The Older Worker's Benefit Protection Act provides protection of benefits or benefit packages for  older workers.  An employer must provide equal benefits for older workers as they do for their  younger counterparts.   An employer can accomplish this by either providing packages that are  equal in benefit or by spending the same amount of money on each person.   An individual cannot  waive his right under this act, unless that waiver is knowing and voluntary.

Replacing Higher Earners and Age Discrimination in the Workplace

It is not illegal to replace people who are making high wages with people who will make less  because they have less seniority. However, this usually means replacing older workers with  younger ones. If the wage considerations are not the real motivator and the employer is actually  trying to replace older workers with younger ones, then that it illegal.  Here, the employee must  prove that it is the age, not the wages, which is motivating the employer to fire the older workers.