On March 31, 2017, the Equal Employment Opportunity Commission (EEOC) announced that it had settled a class action age discrimination lawsuit against the Kentucky-based steakhouse chain, Texas Roadhouse.
The lawsuit alleged that the chain did not hire individuals over the age of 40 for so-called front of the house positions, i.e., servers, bartenders and hosting staff. The lawsuit was settled for $12 million, a large number presumably because there are numerous individuals within the class. As part of the consent decree, Texas Roadhouse also agreed to establish a diversity director and to increase its recruiting and hiring for individuals over the age of 40 in front of the house positions.
A few years back, our firm settled an age discrimination case on behalf of two female employees based on similar allegations. These employees – both in their fifties or sixties – had worked for a restaurant and banquet space for many years. However, when the establishment changed ownership, the new owners were looking to attract a more youthful crowd. Specifically, they were looking for (in pretty much their own words) sexy, buxom blonds in their twenties to work the front of the restaurant. So, they refused to hire these long term employees to the front of the house positions they had held previously. We sued and the case ultimately settled during trial preparation. [Note: Prior results do not guarantee similar outcomes. Each case is different and depends on its own unique set of facts.].
During the course of the litigation, the employer argued that it did not discriminate against our clients because of their age, but because of their appearance. As we've reviewed in a previous article, there is no such thing as “appearance discrimination” as a general matter. [link] But, in this case, appearance was inextricably tied to age. That is when the employer can get in trouble.
What statutes protect employees from age discrimination? Under federal law, it is the Age Discrimination in Employment Act (ADEA). The ADEA applies to private employers with 20 or more employees (this is a more burdensome requirement than Title VII which requires only 15 employees) and covers employees 40 years of age or over. This means that the ADEA does not apply to so-called “reverse age discrimination” – i.e., discriminating against someone for being too young. The ADEA also prohibits harassment because of age as well as retaliation against someone for making a complaint about violations of the ADEA.
Age discrimination cases under the ADEA can be difficult because there is a higher standard for the plaintiff to meet than in other types of discrimination cases like race or sex. Specifically, age cases require a plaintiff to prove that he or she would not have suffered the adverse employment action “but for” their age. In other types of discrimination cases, the protected status only needs to have been a “motivating factor” for the adverse employment action.
The New York State Human Rights Law (NYHRL) also prohibits age discrimination. Unlike the ADEA, the NYHRL does include reverse age discrimination. It protects anyone age 18 and older from age being a factor in an adverse employment decision. The NYHRL also prohibits harassment and retaliation.
If you feel that you have been the victim of age discrimination, please give us a call. We would be happy to review your matter and see if we can help.