Age discrimination the new EEOC focus for employment discrimination litigation? Seems so.

Age discrimination is the new focus of the Equal Employment Opportunity Commission (EEOC) this year according to the  new acting chair of the EEOC, Victoria Lipnic. This is a surprising shift for the EEOC which targeted retaliation and novel issues over the past several years. This move towards age discrimination occurs with the fiftieth anniversary of the Age Discrimination in Employment Act (ADEA) passed in 1967. Although some champion this move for legal reasons, questions remain whether this move has a political purpose as well.

Commissioner Lipnic; courtesy of wikipedia

What qualifies as age discrimination?

Under Texas and federal law, it is unlawful to discriminate on the basis of age against those forty and older. The purpose of statutory protections for age specifically target older employees. That is because they are most likely to be perceived as unable to do work (especially in blue collar settings) or earn at the top of the salary range (especially in white collar settings). Employers often like younger workers who are cheaper and physically likely to have fewer health problems. Employers can discriminate in favor of older workers over those under forty; but cannot discriminate against workers age forty and over.

Texas law on age discrimination

Texas also prohibits age discrimination in employment under Chapter 21 of the Texas Labor Code. The Texas Labor Code prohibits the broad forms of age discrimination like the ADEA (hiring, termination, promotion, pay, harassment). It does not contain some of the specific waiver and severance rules of the ADEA. An important distinction is that the evidentiary burden under the Texas Labor Code is easier for plaintiffs than the ADEA. The ADEA requires age discrimination to be the exclusive reason for an adverse employment action. The Texas Labor Code permits mixed motivations (a legitimate and unlawful motive).

Is the new EEOC focus on age discrimination political?

There are a couple reasons why Commissioner Lipnic may be considered an appointment for a particular political agenda.

Age discrimination is real in the workplace

First, age discrimination is a “real” form of discrimination for many employees. It is a form of discrimination they might experience in their own lives. It is less suspect than racial discrimination or sex discrimination to many white (especially male) workers. There is a strong political current of dismissing these and other forms of discrimination. Not only is focuing on age discrimination a nod to Trump’s white male voting bloc but it also navigates the EEOC away from focus on other forms of employment discrimination.

Positive message to older Americans

Second, using the EEOC as a voice towards older Americans may deflect negative attention from other moves that jeopardize older Americans. There are concerns that Trump and the GOP may make cuts to medicare, the ACA and other social programs that would adversely affect older Americans and might motivate them to punish the GOP in the voting booth in the next several elections. Using the EEOC as a counterweight carries little political risk. The EEOC only acts upon charges of discrimination received and even then has selective power to litigate those claims. It can speak bigly to age discrimination in a broad sense while taking limited action against discriminating employers.

Or is it a legitimate response to employment discrimination?

On the other hand, a focus on age discrimination may simply reflect an under-served area of employment discrimination. The EEOC definitely did not focus on age discrimination through the Obama years although older workers suffered job cuts and pay reductions through the recession. The Obama administration took several acts that may have even signaled a lack of concern about age discrimination. One could argue that age discrimination has been left behind as a priority and the new commissioner wants to keep all forms of unlawful employment discrimination in the agency’s view.

It’s difficult to imagine this is the case. Although the EEOC filed few age discrimination lawsuits in recent years, age discrimination is a low percentage of total discrimination charges filed with the agency. One would expect the EEOC to file a smaller number of age discrimination suits.

That’s not to say age discrimination is not a problem or that other forms of discrimination are worse. Age discrimination is a meaningful problem. It is a vulnerable time where people are trying to hit retirement savings goals, pay down debts and other financial moves. Employees near retirement are most vulnerable because they have a limited period of time to reach financial security before health may prohibit continued full time employment.

Hiring employment attorneys for age discrimination

If you are over the age of forty and believe an employer discriminated against you on the basis of your age then you should talk to an employment attorney in your area right away. Age discrimination claims have short time periods in which you must act to pursue your claim. An employment attorney can evaluate your claim and help you assess your options. Do not delay speaking to an employment attorney.

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