Age Discrimination

• Author: Laura M. Franze
• Pages: 23-62

23-1

Chapter 23

AGE DISCRIMINATION

By Laura M. Franze

23:1. FEDERAL AGE DISCRIMINATION IN EMPLOYMENT ACT (ADEA)

A. Purpose and Scope

B. Covered Persons and Entities

1. Employers

a. Parent Corporation as Employer

b. Individual Supervisor as Employer

c. Immunity Under 11th Amendment

2. Covered Employees

a. Employees Over the Age of 40

b. Americans Working Abroad

c. The Bona Fide Executive or High Policy-Making Position Exemption

d. Coverage for Retiree Benefits

3. The ADEA Does Not Prohibit Reverse Discrimination

C. Administrative Procedures

1. Comparison to Title VII

2. Exhaustion of Remedies

23:2. TEXAS COMMISSION ON HUMAN RIGHTS ACT

A. Prohibited Conduct

B. Covered Persons and Entities

1. Employers

2. Exempt Employees

C. Administrative Procedures

D. Relationship Between TCHRA and ADEA

23:3. PROVING AN AGE DISCRIMINATION CLAIM

A. Disparate Treatment Prima Facie Case

1. Shifting Burdens of Proof

2. Employer’s Burden of Production

TEXAS EMPLOYMENT LAW 23-2

3. Proving Pretext

a. Proving Pretext Generally

b. Employer’s Stated Reason Is Demonstrably False or Employer Has Given Inconsistent

Reasons for Discharge

c. Nonsensical, Arbitrary, Inconsistent or Capricious Employment Decisions

d. Age-Related Remarks

4. Evidence Sufficient to Defeat Claim of Age Bias

a. Reasonable Business Decision

b. “Same Actor Defense”

B. Disparate Impact Prima Facie Case

C. Reduction in Force Cases

D. Class Action Age Discrimination Claims

23:4. AVAILABLE REMEDIES

A. ADEA Claims

1. Back Pay

2. Reinstatement v. Front Pay

3. Liquidated Damages

a. Willful Violation

b. Relationship to Punitive Damages

4. Attorneys’ Fees

B. TCHRA Claims

C. Offsets and Deductions

D. Mitigation of Damages

23:5. DEFENSES TO AGE DISCRIMINATION CLAIMS

A. ADEA Statutory Defenses

1. Defenses to Claim of Intentional Discrimination

2. Defenses to Claim of Disparate Impact Discrimination Under the ADEA

B. TCHRA Defenses

23:6. WAIVER AND SETTLEMENT OF ADEA CLAIMS

A. Individual Employee Waiver

B. Reduction in Force (“RIF”) Waiver

23-3 AGE DISCRIMINATION

C. Practical Ramifications of Releases/Waivers

1. Proof of Consciousness of Guilt

2. Enhanced Severance Benefits to Employee

3. RIF Cases: Rescission on Grounds of Involuntarily Execution

23:7. ARBITRATION

APPENDICES

Appendix 23-1 Minimizing Age Discrimination Claims Arising Out of a Reduction in Force

Appendix 23-2 Employer’s Reduction in Force Checklist

Appendix 23-3 Checklist for Employers: The “Don’ts” of Releases