San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

The Fifth Circuit has recognized that a hostile work environment claim can exist under the Age Discrimination in Employment Act.  The Fifth Circuit has never reached such a conclusion before now.  In Dediol v. Best Chevrolet, Inc., the Federal appellate court reversed a grant of summary judgment in favor of the employer.  

The Court found that such a claim would include the following elements: 1) the employee is over the age of 40, 2) the employee was subject to harassment based on age - either through actions or words, 3) the harassment is severe enough that it  creates an objectively intimidating, hostile, or offensive work environment, and 4) the employer is liable in some way.  See decision.  Mr. Dediol was 65 years old while he worked for Best Chevrolet.  Typically, the employer would be liable if it became aware of the harassment and failed to take action or if a supervisor conducted the harassment against the worker. 

In this case, Mr. Dediol showed that his supervisor called him names such as "Old mother f*****," "old man," and "pops" several times everyday for eight weeks.  The manager also made negative comments about the employee's faith.  Mr. Dediol was a born-again Christian.  The plaintiff eventually quit coming to work. 

Evidence showed that that the supervisor charged at the plaintiff at a staff meeting, threatened to "kick his a**."  He removed his shirt saying, "You don't know who you're talking to.  See these scars.  I was shot and in jail"  

Mr. Dediol quit coming to work and was then terminated.  The Fifth Circuit found that this was sufficient evidence to support a claim for constructive discharge.  That is unusual.  The Fifth Circuit rarely sees a situation it considers sufficiently severe to justify an employee resignation. 

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The Older Workers' Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act.  The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights.  See EEOC Fact Paper.  The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver. 

What if the worker accepts severance pay at the time he signs the release?  Must the worker return the severance pay in order to rescind his signature?  Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998).  If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination.  See EEOC Guidance, Note 13.  

Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live.  That is why Oubre provides they need not return a severance payment related to the waiver.  Most workers who are terminated leave with little resources.  But, Oubre only applies to age claims.  If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim.  Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.  

Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements.  Wrong,  The failure to meet the requirements of the OWBPA only applies to any potential age claim.  Your race claim would remain barred or waived.  The waiver is effective in regard to other non-age related claims.  Same waiver, same provisions.  But, age claimants get a break, while others do not.  

The reality is that most people who are fired are extremely upset at the time.  Even if they do not shed tears, they are are still too disturbed to think clearly.  They do sometimes sign things they should not and accept payments they should not accept.  Age claimants can undo such agreements. The others cannot. 

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 State workers have it rough.  Yea, they have more job security than many private employees.  But, if they are not paid in accordance with the Fair Labor Standards Act, they cannot file suit against their employer.   That was the result of the 1999 decision in Alden v. Maine.  They also cannot sue their employer under the Americans with Disabilities Act or the Age Discrimination in Employment Act.  

The Texas equivalent of the ADA and the ADEA provide comparable protections.  But, the state version of the Fair Labor Standards Act has no teeth.  Most states have a law comparable to the FLSA.  A handful of states, including Texas, do not.  So, at least regarding wage violations, state workers have little or no recourse. 

The 1999 Alden decision was a 5-4 decision by the US Supreme Court.  That decision overturned decades of earlier decisions by lower courts.  So, yes, presidential appointments to the Supreme Court do matter.  

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 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was not to put too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  That is probably a good thing.  But, if you are being discriminated against by one of these employers, then that is not such a good thing.  A young man came to see me, once.  He had a steady girlfriend, someone he cared about very much.  But, his older female boss and sole proprietor kept "making moves" on him.  She just would not stop.  He was very upset.  He loved his work.  But, this steady pressure to cooperate was taking a toll.  I had to break the bad news to him.  Even with part-time employees, they were way short of 15 employees.  

He left my office knowing he would have to quit or risk losing his job when he was not ready for it.  Plus, his girlfriend was not happy with him for staying there as long as he had.  

In a perfect world, we would all lose or keep our jobs based on our merit.  But, in this world, we often lose or keep jobs through no fault of our own.  Welcome to free (or semi-free) enterprise......

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