Dinosaurs, Grey Hair, and the Workplace — Age Discrimination in Employment

A recent New York Times reported that tech companies are scrambling to hire. This would seem to be great news for applicants and employees. Right? But, if you are over 40, a hiring boom or job security may not be in your future. In fact, things can get unexpectedly nasty for the working “dinosaurs”. Today, approximately one-third of the workforce in the U.S. is 50 years old or older according to the AARP.

Between 2013 and 2018, IBM reportedly fired about 20,000 American employees over the age of 40, which amounted to about 60 percent of its total U.S. job cuts during those years. Internal documents compared older employees to dinosaurs and called for their extinction. Older female employees were disparaged as a “dated maternal workforce.” In recent years, similar claims have been made about hiring and retention policies at Google and Apple.

Although tech companies may discriminate on the basis of age or gender, the practice of singling out “grey hairs” for termination or demotion is not limited to them. Age discrimination rises hand in hand with the unemployment rate and older employees tend to be the last hired back and the first fired. Pandemic-related business dislocations have made a bad trend worse. Federal and Texas laws protect employees from age, gender, and other forms of discrimination. For older employees, it may just be a matter of getting the right legal help to overcome such setbacks as getting fired.

Our Employment Lawyers Can Help with Your Age Discrimination Problem

If you believe you have experienced employment discrimination because of your age, you should talk to an employment lawyer at Kilgore & Kilgore. Employment discrimination can occur in different ways and for many different reasons including age, gender, race, pregnancy, sexual orientation, national origin, disability, and any combination of these reasons. Our discrimination lawyers understand the range of remedies you may have under Texas and federal law. If you have experienced age discrimination in the workplace, reach out to us by clicking this link Contact Kilgore & Kilgore. To learn more about our employment discrimination law practice, click this link Dallas Discrimination Lawyers Hold Employers Liable for Employee Rights Violations.

Not All Unfair Treatment is Illegal Age Discrimination

Whether in the tech industry or other sectors of the economy, the requirements of age and other forms of law governing employment discrimination are the same. Not all bad employer conduct is illegal, and laws contain considerable protections for employers. Texas employers have wide discretion when it comes to hiring, promotions, and firing decisions.

An employee who brings a claim for discriminatory treatment must, first, fall within a class of employees explicitly protected by the statute. The federal law known as the Age Discrimination in Employment Act (ADEA) protects applicants and employees who are over the age of 40. The same is true of Texas Labor Code Chapter 21. Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis race, color, religion, gender, pregnancy, or national origin, is not age limited. None of these laws, however, apply to very small employers – those with fewer than 15 employees, or 20, in the case of the ADEA.

Even an employee who falls within the group of individuals expressly protected by the law has a considerable burden to bear to show that the treatment was discriminatory, not simply callous, unfair, or mean-spirited. In an age discrimination lawsuit, several issues can become important. These include:

  • direct – whether the conduct complained of was direct – as in an employer’s statement
    that “We are firing you because you are old,” which is quite rare these days; or
  • indirect – something that an employee believes is discriminatory based on the totality
    of circumstances.

If the evidence is circumstantial, it is then up to the employee to show that he or she:

  • was qualified for the position;
  • suffered some adverse employment action (like firing or demotion); and
  • was replaced by someone outside the protected group or was treated less favorably than other similarly situated employees outside the protected group.

The last requirement can prove to be a stumbling block for employees as it was for the plaintiff in a 2021 Fifth Circuit District Court case (Wright v. United Parcel Service) of a female employee who was fired for working too slowly. She claimed she was an employee over 40, which is recognized as a protected class of worker. She failed to prove that she was classified as such by her employer. She lost her claim and the Fifth Circuit agreed with the summary judgment of the lower court.

Employers Keep Employee Records Confidential for a Reason

Employers control access to information about employee firings, hirings, and job performance. This makes it more difficult for employees who claim discrimination or other illegal treatment to argue crucial elements of their cases against employers when they go to court.

Even when an employee can make what is termed a “prima facie” case for illegal discrimination, an employer may prevail by showing that a non-discriminatory reason also existed for the adverse employment action. In federal court, it is not enough that age discrimination was a contributing factor in the employer’s decision. It must be the determining cause – the “but for” cause – as reiterated in 2019 by the Fifth Circuit District Court (McMichael v. Transocean Offshore Deepwater Drilling) in a case involving a 51-year-old drilling employee and his claim of age discrimination against his employer who fired him. In fact, the employer fired 7,320 employees at once and more later. The employer’s HR department devised a plan to rank the employees to identify the top talent to decide who to keep and who to fire. The scoring system used to rank the employees considered several different factors. In addition, the supervisors of the employees ranked each employee’s on-the-job performance. The claimant who pressed this lawsuit was poorly ranked, so he was fired. A different, younger, higher ranked employee took over the job. So, the fired employee sued his former employer for age discrimination but lost because he was unable to prove the age discrimination that he claimed.

On the other hand, the U.S. Supreme Court has held that an individual protected by the ADEA can sue an employer for age discrimination if the employer’s policy, practice, or other employment action has had a disparate impact — even if unintended — on older employees. This may be useful in situations where, for instance, an employer requires a group of employees, including those under 40, to transfer to another location, with full knowledge that the older employees may chose to leave rather than relocate. This may be especially true where a telling paper trail details plans and strategies for shedding a particular group of protected employees, like older employees or older women. It is important to have an experienced employment lawyer at your side.

Contact Us If You Have Questions About Age Discrimination

If you believe that you are the victim of discrimination at work, you may be right. Let us explore how we can help you. Reach out to Kilgore & Kilgore for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore.

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