UnderCover Waitress: Age Discrimination

Monday, January 16, 2012

Age Discrimination

Heard from a hard-working waitress who is 45 years old. She is currently looking for a job but having no luck landing one. She thinks she may be experiencing age discrimination.  

The Employment Discrimination in Texas Online Fact Sheet states: 

"Chapter 21, Texas Labor Code and The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government."

What this means is that it is illegal for employers to discriminate against workers and job applicants on the basis of age if they are 40 years of age or older. If the job applicant were 35 years of age, she is not protected in Texas. (Some states protect all ages against discrimination.)  

Now that we know which employees and job applicants are protected against age discrimination by employers in Texas, we must define "employer." 

According to the Texas Labor Code

"§ 201.021. GENERAL DEFINITION OF EMPLOYER.  (a) In this 
subtitle, "employer" means an employing unit that:
(1)  paid wages of $1,500 or more during a calendar 
quarter in the current or preceding calendar year;  or
(2)  employed at least one individual in employment for 
a portion of at least one day during 20 or more different calendar 
weeks of the current or preceding calendar year." 

So basically,

(1) a restaurant owner is an employer if he or she pays out at least $1,500 in wages to an employee or employees during a calendar quarter, which are three month periods of time. If this has not happened in the last two years, the restaurant owner is not an employer.

(2) a restaurant owner or manager is an employer if he or she has employed at least one individual for at least part of a day during any 20 week period this year or last year.

It is safe to assume, in my opinion, that restaurants in Texas are employers.

The next question is how to prove employment discrimination of job applicants. Probably not an easy thing to do, and I am under the impression (and I can be wrong) that employment lawyers will not be jumping to take these cases because of the high chance they will lose. Burden of proof would be on the waitress claiming job applicant discrimination on the basis of age.

The best way to answer this question, however, is to have a chat with an employment and labor lawyer in Texas. Make sure to give him or her all of the details, but please don't get your hopes too high.

For the record, none of this is legal advice. This blog is meant to inform and to entertain. I am not a lawyer, or as I like to say, I'm just a stupid waitress. ;-D

Best of luck to anybody experiencing these problems.


  1. Rotten turn of luck for her; the qualifications ought to be in her work history alone.

  2. Sounds that way. She said that she has never worked for less than 3 years at any one establishment.


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