Chapter 12 - Age Discrimination

Record-keeping requirement

3 years for basic info (name, DOB, pay, etc.), 1 year for employment records.

1967

ADEA (Age Discrimination in Employment Act) - public (unlike Title VII, which excludes State employees) private employers, union, agencies, foreign companies, in US with 20+ employees

Economic concerns (Defense against age discrimination)

ADEA forbids unilaterally cutting salary, but voluntary demotion generally held OK, and employee rejected may indicate discriminatory intent.

RFOA provision (Reasonable factors other than age) (Defense against age discrimination)

Different treatment (higher increases to younger employees) reasonable if goal is not discriminatory. Disagreement where higher - salaried employees eliminated to save money. Is seniority a "proxy" for age?

Distinctions between ADEA and Title VII

Enforcement through EEOC, but defenses more lenient - employer can rebut prima facie case by citing any reasonable factor other than age as a motive - no per se defense that a replacement was over 40, but no reverse discrimination (perhaps under state law).

Disparate Treatment

McDonnell - Douglas factors apply - but "qualifications" more significant in age cases, although mere hiring often used to show employee qualified - job requirements must be legitimate. Note: advertisements for employees evaluated based on context, not words ("young")

1990

OWBFA amended section 4(f) of ADEA - concerns retirement plan incentives, and requires relatively equal (to younger workers) benefits, unless cost significantly higher. Waivers must be "knowing and voluntary" 21 days to consider, 7 to revoke (45 days if early retirement is part of any settlement).

ADEA 1978

Originally covered ages 40-65, then raised to 70, then ceiling removed.

Retaliation

Tracks Title VII, including acting as witness - punitive damages unavailable, except in retaliation.

Hostile Work Environment

based on age not recognized in all courts.

"Same Actor" (Defense against age discrimination)

defense often applied, if person who fires is the one who hired an older worker. "If someone held discriminatory beliefs about older workers, why would that person have hired the worker in the first place?"

Prima Facie Case

disparate treatment or disparate impact.

2009 ruling

employee must show "but for," so no mixed-motive claims will succeed - based on amendment to Title VII, but not to ADEA. Not the same as proving age the only factor

Employee Options

file with EEOC, state agency, or sue under ADEA, state law.

Early Retirement plans (Defense against age discrimination)

law not clear unless a subterfuge to evade the purpose of the ADEA is shown.

1986 Amendments to ADEA (Defense)

prohibited mandatory retirement age - except tenured faculty until 1993; now police, fire, high-level executives with a substantial pension.

ERISA

regulates pension, health plans, prohibits exclusion based on age

BFOQ (Defense against age discrimination)

same as Title VII to a point, except, must show broad application, to all or most older workers, of rule, or disqualifying trait. Must also show that applicant for hire or promotion does not meet a legitimate job requirement.