The Texas Labor Code prohibits employment practices that discriminate against individuals who are 40 years of age or older, consistent with the federal Age Discrimination in Employment Act (ADEA). The Texas Code covers employers with 15 or more employees, whereas the ADEA covers employers with 20 or more employees (TX Labor Code Sec. 21.001 et seq.). Under the state law, it is an unlawful employment practice to:
• Refuse to hire, discharge, or otherwise discriminate with respect to an individual's compensation or terms and conditions of employment (TX Labor Code Sec. 21.051).
• Retaliate against any individual who has opposed a discriminatory practice; has made or filed a charge or complaint; or who testifies, assists, or participates in an investigation, proceeding, or hearing under the state law (TX Labor Code Sec. 21.055).
• Limit, segregate, or classify an employee or job applicant in a manner that would tend to deprive a person of any employment opportunity or otherwise adversely affect employment status.
• Aid, abet, incite, or coerce a person to engage in a discriminatory practice (TX Labor Code Sec. 21.056).
• Publish an advertisement for employment indicating a preference, limitation, specification, or discrimination based on age, unless age is a bona fide occupational qualification (BFOQ) (TX Labor Code Sec. 21.059).
For job advertisements, employers should avoid any reference to age-related statements, such as “young” or “vigorous” applicants desired. In addition, application forms should not contain requests for age-related dates, such as high school or college graduation dates. Instead, concentrate on degrees earned or training received.
Proving age discrimination under state law. Although the ...