Topic 4: Age Discrimination

reduction in force

term applied to an employer procedure used to terminate employment positions caused by lost funding, change of work requirements, or the reorganization of a business operation

budgetary reasons

the ADEA does not prohibit elimination of an older worker's position for ------ reasons.

the failure of the covered employee to adequately perform the essential functions of the job to the employer's satisfaction.

the most compelling defense to an age discrimination case is

Justin Souter

wrote that "the enemy of 40 is 30 not 50." The idea was that without this rule, all retirement and seniority plans would be rendered null.

ADEA waivers

A statement from a retiring employee that her or she will noot make a personal claim against the employer in exchange for retirement incentives

21:7

A workforce reduction plan must contain language recommending consultation with an attorney and has to include both ____-day consideration and ___-day rescission periods.

Negative

Age discrimination may also be established when an employee shows that a facially-neutral company policy has a ___________effect on employees covered by the ADEA.

reasonable factor other than age

An employer defense to a disparate claim that was not a factor in an employment action

Arbitrary

Congress first directed the secretary of labor to investigate age discrimination. The Secretary found that age discrimination against older workers was prevalent, with the bulk of the problem stemming from employers setting __________ age maximums

Fair

Courts will not review whether the termination of an older worker was ________, but rather whether it was based upon clear procedures, objective budgetary considerations, and actual position elimination.

acceptable under the ADEA

For example, if competent medical evidence shows that persons over 75 are usually susceptible to a sudden onset seizure disorder, which had no recognized method of pre-seizure detection, the BFOQ of age would be

It is not considered in the civil rights act

How is age considered in Title VII of the Civil Rights Act of 1964?

In a manner calculated to be understood by the individual, or by the average individual eligible to participate in a workforce reduction plan

How should ADEA waivers be written?

True

If two people apply for the same position, and one is 42 and other 52, the employer may not lawfully turn down either on the basis of age, but must make such a decision on the basis of some other factor.

an employee must show that he or she: 1) is over 40 years of age and older; 2) was qualified for the employment position; 3) was adequately performing the essential job functions; and 4) was treated less favorably than another younger employee

In order to establish a claim of age discrimination....

Substantially younger than the complaining employee

In order to establish a prima facie case for age discrimination under the ADEA, the claimant might provide that he/she was treated less favorably than another younger employee. What qualifies as a younger employee?

Made to numerous employees at the same time

Most of the time, retirement incentives and accompanying ADEA waivers are:

1) used as an opportunity to eliminate older workers; 2) based upon subjective criteria; or 3) employed as a pretext to avoid ADEA concerns.

On the flip side, courts will find a RIF plan discriminatory if downsizing is:

False

The ADEA prohibits elimination of an older worker's position for budgetary reasons

1) firefighters and police officers; and 2) a small number of corporate executives who carry substantial discretionary authority and will have a company pension of at least $44,000.

The ADEA prohibits the imposition of a mandatory retirement age. Two exceptions include:

40

The Age Discrimination in Employment Act protects workers that are ____ and older.

Whether the employer has clearly defined the business purpose of the factor Whether the factor itself is clear and applied fairly The extent to which managers and supervisors are trained to apply the factor without engaging in discrimination The extent to which supervisor discretion is limited or based on subjective judgments The extent to which older employees are impacted by the practice The degree of harm to individuals within the protected age group

The EEOC has issued some extensive, but not exhaustive, rules to determine whether an employment practice is a RFOA:

) substantially all persons over a certain age are unable to perform specific job functions; or 2) that some individuals over a certain age possess a disqualifying trait which is unascertainable outside of that age.

The EEOC requires that an employer using age as a BFOQ must show that the age limit imposed is reasonably necessary to the essence of the employer's business and that:

The number of people continuing to work after the age of 55 is rising

What is happening to the number of people who continue to work after the age of 55?

Analytically distinct

The Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604, held that age and seniority are ________________ from each other in the ADEA context.

Has increased

The amount of women in the workforce:

Employers may always favor the old over the young, even when both candidates are 40 years of age and older

The court case of General Dynamics Land Systems, Inc v. Cline found that:

Includes a reasonable factor other than age

The employer defense to disparate impact claims is that the employment practice:

age is a bona fide occupational qualification (BFOQ).

The most common employer defense to ADEA disparate treatment claims is

Bona fide occupational qualification

The most common employer defense to ADEA disparate treatment claims is:

same actor defense

This defense is applied when the same employer hires and then fires the 40 years or older plaintiff employee claiming discrimination. The courts have concluded that if the employer was willing to hire a person 40 years of age or older, a permissible inference is present that age was not a motivating factor in the ultimate termination of that same employee.

same actor defense

This defense is applied when the same employer hires and then fires the over 39 plaintiff employee who claims discrimination.

age discrimination

This rise in older workers remaining in the workplace longer carries with it a concomitant rise in ______________claims.

Plaintiff

To establish an ADEA claim, the burden of proof falls squarely on the ___________ to show that "but for" age discrimination the negative job action would not have occurred.

Old workers Benefit Protection

To protect older workers from potential abuse and to prevent circumvention of ADEA anti-discrimination protections through the use of aggressive retirement pressures, in 1990 Congress passed:

Not required

Unlike the "business necessity test" in Title VII cases, when an employer makes a reasonable business decision impacting older workers, the employer is __________ to search for, or employ, another less-discriminatory practice for achieving the legitimate business purpose.

reduction in force

When a firm eliminates one or more positions as part of a strategic business plan to realign operations and/or reduce costs, this is referred to as:

Whether the rule was designed to discriminate against older employees

Which of the following is not a guideline in determining if an employment rule is a RFOA?

Eliminates one or more positions as part of a strategic business plan

Which of the following is not a reason a RIF plan would be seen as discriminatory?

higher health costs

Which of the following is not a reason employers benefit from retaining and hiring older employees?

Was made to feel old because the majority of employees are younger

Which of the following is not required in establishing a claim of age discrimination under the ADEA?

The design and administration of the practice was not reasonable because it decreased the likelihood that the employer's stated goal would be achieved and increased the likelihood that older workers would be disadvantaged.

Which of the following statements is true based on this scenario? An employer asked managers to identify the least productive employees without providing any guidance about how to do so. As a result, older workers were disproportionately rated as least productive.

fewer dependents

While individual older employees can have higher health care costs than other employees, in one respect they have lower health costs. Why would that be?

many states have more favorable timelines for filing claims, have laws that apply to a greater number of firms, and have a more favorable range of damages.

Why are many age discrimination cases made at the states level?

Age Discrimination in Employment Act

applies to public and private employers and unions with more than 20 employees

ADEA waiver

does not prevent an employee from making an age discrimination claim with the EEOC

Older Workers Benefit Protection

employers may offer retirement incentives to older workers as long as the terms and restrictions of the incentives are fully explained and assurances given that another more favorable plan will not be imminently forthcoming (no one wants to accept a retirement package only to find that several months later a better option exists).

Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604,

held that age and seniority are "analytically distinct" from each other in the ADEA context. Therefore, a paper company's decision to terminate an employee because his pension was about to "vest" did not violate the ADEA. That is, the decision was made due to years of service and "vesting," not due to the employee's age

General Dynamics Land Systems, Inc v. Cline

held that employers may always favor the old over the young, even with both candidates being 40 years of age and older.

employer

if the waiver is later disputed, the burden is on the ---- to establish its validity

Age Discrimination in Employment Act of 1967

protect workers aged 40-65 years, but eventually the upper age limit was eliminated altogether. The _____ applies to public and private employers and unions with more than 20 employees.