Ch 12

Qualified for the Position

If applicant is not qualified, then the employer's decision regarding the applicant would be justified and the applicant's claim fails The position requirements, however, must be legitimate requirements, and not merely devised for the purpose of terminating or refusing to hire older workers Courts have allowed this requirement to be met by the employee simply showing that the employee was never told that performance was unacceptable. Courts have even held that the fact that employee was hired initially indicated that he or she had the basic qualifications.

Member for the Protected Class

In order to satisfy the first requirement of the prima facie case, the employee must merely show that the she or he is 40 years or older.

BFOQ Mandatory Retirement Reasonable factors other than age Economic Concerns

Four Employer Defenses Are?

The Age Discrimination in Employment Act of 1967 29 USC §621, et seq

(a) It shall be unlawful for an employer- (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or (3) to reduce the wage rate of any employee in order to comply with this chapter.

Mandatory Retirement

A small number of high‑level employees with substantial executive authority can be subjected to compulsory retirement at age 70. This exception is a very narrow one and does not allow for compulsory retirement policies for mid‑level managers Persons in selected occupations in which age is a bona fide occupational qualification, such as police and firefighters, have been subject to mandatory retirement

Economic Concerns

Courts have tended to hold that economic decisions do not give rise to liability for age discrimination, despite the disparate impact of such decisions on older workers. There is a clear trend toward concluding that the ADEA does not support a disparate impact claim.

job applications, resumes, or other employment inquiries in answer to ads or notices, plus records about failure or refusal to hire. records on promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee. job orders given to agencies or unions for recruiting personnel for job openings. test papers results of physical exams that are considered in connection with any personnel action. ads or notices relating to job openings, promotions, training programs, or opportunities for overtime.

Employers are required to maintain the following information for one year for each employee, and for both regular and temporary workers:

Name address date of birth occupation rate of pay

Employers are required to maintain the following information for three years for each employee and applicant, where applicable:

Equal-benefit/equal-cost rule. equal benefits

Employers under the ADEA are held to an _____ ______/____________ rule. To comply, employers must either provide ______ ________ to workers of all ages or spend an equal amount to purchase benefits.

Economic Concerns Solution? offer the older worker the option of accepting a pay cut in lieu of termination

It is likely to be more expensive under certain circumstances to maintain older workers than younger; so cutting the numbers of older workers may reduce costs in some firms A termination allegedly based on economic factors may constitute impermissible discrimination, however, when the economic reasons proffered serve merely to obscure the fact that age was the true determinant

Age Discrimination in Employment Act (ADEA) 1967

Prohibits discrimination in employment on the basis of age; applies to individuals who are at least 40 years old. Individuals who are not yet 40 years old are not protected by the act and may be discriminated against on the basis of their age.

the essence of the business requires the exclusion of the members of a protected class all or substantially all of the members of that class are unable to perform adequately in the position in question, and The age limit is reasonably necessary (there is a reasonable necessity- not whether it is reasonable) to the essence of the employer's business; and either All or substantially all of the individuals over that age are unable to perform the job's requirements adequately; or Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.

Proof of a BFOQ includes:

a. The employee is in the protected class; b. The employee was terminated or demoted; c. The employee was doing his job well enough to meet her or his employer's legitimate expectations; and d. Others not in the protected class were treated more favorably.

The employee must establish the following four elements to persuade the court that she or he even has a claim for age discrimination:

Dissimilar Treatment

The employee or applicant must show that he was treated differently than other employees who are not in the protected class.

Reasonable Factor Other Than Age

The employer must show that the adverse action was taken as a result of "reasonable factors other than age." This allows employers to discriminate against protected persons for reasons which may have an adverse effect on older workers, such as dexterity or strength. The factor must be job-related if the distinction has a disparate impact on employees over forty.

Adverse Employment Action

The second requirement is proof that the employer made an employment decision that adversely affected the employee. This may include a decision not to hire the applicant or to terminate the employee.