Chapter 12 - Age Discrimination

Waiver

The intentional relinquishment of a known right. Under OWBPA must be "knowing and voluntary" to be valid.

What ERISA regulates and requires

1) Determination of who must be covered by pension plans 2) Vesting requirements 3) Amount that the employer must invest for the benefit of employees 4) Complete disclosure of the administration of the plan 5) Stipulates that an employee may not be excluded from a plan because of age, as long as he is at least 21 and a FT employee with at least one year of service

ADEA: Punitive Damages

Not allowed under ADEA-based but allowable in retaliation claims in age discrimination cases.

Remedies under ADEA

1) Equitable relief, including reinstatement, promotions, and injunctions. 2) liquidated damages in the amount equal to unpaid wage liability where the employer-defendant, "willfully violated" the ADEA

Age Discrimination: Employee Options

1) File an internal grievance 2) File a charge with EEOC 3) File a complaint with state equivalent to EEOC, if any 4) File a federal court lawsuit under ADEA 5) File a state court lawsuit under state age discrimination laws

Who must comply with ADEA?

1) Public and private employers 2) Unions 3) Employment agencies 4) Foreign companies with more than 20 workers in the U.S.

ERISA

Employee Retirement Income Security Act, passed by Congress in 1974, this legislation regulates employee benefit plans and protects employees from wrongful denial of all types of benefits, including retirement or benefit plans.

State Law Claims

Sometimes provide greater protection than the ADEA such as applying to all employers, a wider range of damages, longer filing periods, and processed more quickly.

O'Connor v. Consolidated Coin Caterers

Supreme Court held that a plaintiff can state a claim even if the replacement is 40 years or older.

Age Discrimination: Disparate Impact Prima Facie Case

1) A facially neutral policy or rule is imposed by an employer 2) which has a different effect on an older groupof workers 3) No intent to discriminate is necessary.

Damages under ADEA

Back wages and attorney's fees

Age Discrimination: Standard of Proof

In ADEA cases, the more stringent "but for" test, but in state cases, the mixed motive analysis, which includes burden shifting.

Kimel v. Florida Board of Regents

In this case, the Supreme Court determined that state employees cannot sue their state employers under ADEA.

Age Discrimination: Disparate Impact Defense

Reasonable factor other than age (RFOA), such as economic concerns and/or seniority

Equitable Relief

Relief based on concepts of justice and fairness that is not in the form of money damages, such as injunctions, reinstatement, and promotion.

Qualified for the position

Able to meet the employer's legitimate job requirements

Age Discrimination in Employment Act

Enacted in 1967, this legislation enforced by EEOC prohibits discrimination in employment on the basis of age; applies to individuals who are at least 40 years old. Individual who are not yet 40 years old are not protected and may be discriminated against on the basis of age.

Mandatory Retirement

Employee must retire upon reaching a specified age, deemed illegal by the 1986 amendments to the ADEA, with few exceptions.

Age Discrimination: Hostile Environment Prima Facie Case

Recognized by the 5th, 6th Circuit, 8th, and 11th Circuit, a prima facie case exists when: 1) The employee is 40+ 2) Subjected to harassment, either through words or actions, based on age 3) Harassment had the effect of unreasonably interfering with the employee's work performance and creating an objectively intimidating, hostile, or offensive work environment 4) There exists some basis for liability on the part of the employer.

University of Texas Southwestern Medical Center v. Nassar

The Supreme Court held that the "but for" causation standard applies not only to adverse employment actions in ADEA cases but also to Title VII retaliation plaintiffs.

Types of discrimination under ADEA

1) Disparate treatment 2) Disparate impact

Sprint/United Management Co. v. Mendelsohn

A 2008 Supreme Court case which held that evidence of other older workers terminated from the same company should be evaluated on a case-by-case basis. Called "me, too" evidence, the Court stated that the question whether evidence of other discrimination by other supervisors is relevant is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances.

Gross v. FBL Financial Serv., Inc.

A 2009 disparate treatment age case, the court ruled that age discrimination cases under the ADEA require proof that age was the "but for" cause of the adverse employment action; therefore, no burden shifting occurs. Mixed motive cases, therefore, no longer exist under ADEA for disparate treatment claims. The employee will recover only if the employment action would not have taken place "but for" age discrimination.

RFOA: EEOC Final Rule

A basis for an employment decision that is "objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances." An employment practice is based on this when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.

Cline

A case that opened the door to the possibility of claims that one was discriminated against because of their youth.

"Same Actor" Defense

A defense adopted by several circuit courts, which permits an inference that when the same actor hires and fires a worker protected by the ADEA, the employee's age was not a motivating factor in the decision.

Adverse Employment Action

Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee.

Requirements for Valid Waivers

1) Written to be understood by an average employee 2) Specifically refers to ADEA right or claims, but may refer to additional acts, such as Title VII or applicable state acts. 3) Waiver only affects those claims or rights that have arisen prior to the date of the waiver 4) Waivers of rights to claims may only be offered in exchange for some consideration in addition to anything to which the individual is already entitled 5) Employee must be advised in writing to consult with an attorney prior to execution of the waiver 6) Employee must be given a period of 21 days in which to consider signing a waiver, and an additional 7 days to revoke the signature except if offered in exchange for an early retirement plan, the individual must have 45 days to consider signing the agreement 7) If the waiver is executed in connection with an early retirement plan or other employment termination program, the employer must inform the employee in writing of the exact terms and inclusions of the program. NOTE: The waiver may not bar the employee from filing a claim with the EEOC or participating in EEOC investigations.

Five considerations for reasonableness under EEOC Final Rul

1) extent to which the factor is related to the employer's stated business purpose 2) extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination 3) extent to which the employer limited supervisors' discretion to assess employees subjectively, especially where the criteria that supervisors are asked to evaluate are known to be subject to negative age-based stereotypes 4) extent to which the employer assessed the adverse impact of its employment practice of older workers; and 5) The degree of the harm to individuals within the protected age group, in terms of both the extent of injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.

Older Workers' Benefit Protection Act (OWBPA)

Enacted by Congress in 1990, it amended section 4(f) of ADEA. It concerns the legality and enforceability of early retirement incentive programs or "exit incentive programs," waivers of rights under the ADEA, and prohibits age discrimination in the provision of employee benefits.

Limited use of mandatory retirement

1) A small number of high-level employees with substantial executive authority can be subjected to compulsory retirement at age 65 or beyond if the individual will receive a company pension of $44,000 or more 2) Police officers, firefighters, pilots (note that age is not necessarily a BFOQ in these professions).

Distinctions between ADEA and Title VII

1) ADEA is more lenient than Title VII regarding the latitude afforded employers' reasons for adverse employment decisions. 2) An employee is not barred from pursuing a claim simply because the employer treated another older employee better. 3) Only employees over 40 are protected but no basis of "reverse" discrimination by individuals under 40.

Age Discrimination: Proof of Pretext

1) Age is a determining factor. 2) Reason offered had no basis in fact. 3) Reason offered did not motivate the adverse action OR 4) Reason offered is insufficient to motivate the adverse action.

Age Discrimination: Disparate Treatment Defenses

1) BFOQ 2) Observation of the terms of a bona fide seniority system or bona fide employee benefit plan such as a retirement, pension, or insurance plan 3) Discharge or discipline for good cause

Age Discrimination: EEOC Options

1) Dismiss, no merit 2) Investigate 3) Bring suit, if merit OR 4) Issue a Right to Sue letter

Age Discrimination: Disparate Treatement Prima Facie Case

1) In the protected class 2) Suffered an adverse employment action 3) Performed job well enough to meet employer's legitimate expectations 4) Others not in the protected class were treated more favorably.

ADEA record keeping requirements: 1 year

1) Job applications, resumes, or other employment inquiries in answer to ads or notices, plus records about failure or refusal to hire 2) Records on promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee 3) Jobs orders to agencies or unions for recruiting personnel for job openings 4) Test papers 5) Physical exam results considered in connection with any personnel action 6) Ads or notices relating to job openings, promotions, training programs, or opportunities for OT

Age Discrimination: Statute of Limitations

180 days to file with EEOC unless there is a state age discrimination law, then 300 days to file

Liquidated Damages

Limit awards to a predetermined amount, with ADEA, an amount equal to the unpaid wage and are available in cases, involving "willful violations" of the statute.

ADEA: Section 4(e)

Makes it unlawful to "print or publish or cause to be printed or published, any notice or advertisement . . . indicating any preference, limitation, specification, or discrimination, based on age."

Reasonable factor other than age

May include any requirement that does not have an adverse impact on older workers, as well as those factors that do adversely affect this protected class but are shown to be job-related.

ADEA record keeping requirements: 3 years

Name, address, DOB, occupation, rate of pay, and compensation earned each week.

Age Discrimination: Employer BFOQ Defense

The employer must prove: 1) The age limit is reasonably necessary to the essence of the employer's business and either 2) All or substantially all of the individuals over that age are unable to perform the job requirements adequately; OR 3) Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.