Module 5 HR

the EEOC, which exercised its statutory authority to approve reasonable exceptions to the ADEA, 43 promulgated a rule stating that it is not a violation of the act to alter, reduce or eliminate health benefits

for retirees when the participant becomes eligible for Medicare or comparable state health benefits.

• A polygraph means an

instrument that records continuously, visually, permanently, and simultaneously changes in cardiovascular, respiratory and electrodermal patterns as minimum instrumentation standards and is used to render a diagnostic opinion as to the honesty or dishonesty of as individual.

The determination regarding whether a company is under an American employer's control is based on the

interrelation of operations, common management, centralized control of labor relations, and common ownership or financial control between the employer and the corporation

Mixed motive cases, which involve employment actions that are based on a mix of discriminatory and nondiscriminatory reasons, require a plaintiff to provide

"direct evidence" demonstrating that age discrimination was a "substantial factor" in the employer's action

the ADEA does allow institutions of higher education to offer tenured employees who become eligible to retire ______________to encourage them to voluntarily retire.

"supplemental benefits"

Under this narrow interpretation, an employer must justify an age-based employment requirement by demonstrating

(1) that the requirement is reasonably necessary to the essence of its business, and (2) that an individualized approach would be pointless or impractical

The Supreme Court, in Oscar Mayer & Co. v. Evans

, held that this provision requires claimants to pursue state claims prior to suing in federal court. However, the Court also held that this provision is satisfied by filing with the applicable state agency, that such charges do not need to be filed within the state law filing period, and that exhaustion of state remedies is not required before filing a complaint with the EEOC

A waiver is knowing and voluntary if:

A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to be understood by such individual, or by the average individual eligible to participate; (B) the waiver specifically refers to rights or claims arising under this chapter; (C) the individual does not waive rights of claims that may arise after the date the waiver is executed; (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (E) the individual is advised in writing to consult with an attorney prior to executing the Agreement f)the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

if an employer uses cost factors such as pension status or high salary as a proxy for age, then an

ADEA violation may occur

Independent contractors are not employees within the meaning of the Age Discrimination in Employment Act and are not entitled to its protections. True or False

False

The differences between a McDonnell Douglas pretext case and a Price Waterhouse mixed motives case

First, under the McDonnell Douglas framework, the burden of persuasion remains on the plaintiff at all times because the plaintiff bears the burden of demonstrating pretext in response to an employer's articulation of a nondiscriminatory reason for the employment action. Under the Price Waterhouse framework, however, the burden of persuasion ultimately lands on the employer, who must prove that it would have made the same employment decision even in the absence of the discriminatory motive.

expeceptions to the prohibiton agaisnt age discrimination

For example, although mandatory retirement policies generally constitute a violation of the ADEA, the statute permits employers to establish compulsory retirement for a bona fide executive or high policymaker who has reached age 65 and is entitled to a pension benefit of at least $44,000.19 Under certain circumstances, state and local governments may establish mandatory retirement requirements for their firefighters or law enforcement officers.20 Also exempt are federal civil service employees who are air traffic controllers, firefighters, law enforcement officers, nuclear materials couriers, and customs and border protection officers

The deadline for filing an ADEA charge varies depending on several factors

Generally, a private sector employee must file a complaint with the EEOC within 180 days of the alleged discriminatory act. if the state where the alleged unlawful practice took place has an age discrimination law and a corresponding enforcement agency, then the time by which a claimant must file with the EEOC is extended to within 300 days of the alleged unlawful practice.

Despite the ADEA's exemption for the personal staff, appointees, and legal advisers of state officials, such individuals may nevertheless be able to file age discrimination claims under a separate law, the

Government Employee Rights Act State officials remain exempt and therefore are not protected from age discrimination by either law

Although state court judges who are elected are clearly not covered by the ADEA, the status of appointed state court judges was less clear until the Supreme Court ruled in ________________V___________ that such judges fall within the exception to the ADEA regarding "appointee on the policymaking level.

Gregory v. Ashcroft

When did the Genetic Information Nondiscrimination Act (GINA) became law

May 2008

When direct evidence of discrimination is lacking, plaintiffs are generally subject to the burden-shifting framework established by the Supreme Court in

McDonnell Douglas v. Green and Texas Dept. of Community Affairs v. Burdine

in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. True or False

True

Who qualifies as an employer under the ADEA?

Be engaged in an industry affecting commerce; Have 20 or more employees; and Have an employment relationship with the claimed employee

. Under the facts in the McDonnell Douglas case, a prima facie case would be established when the plaintiff showed:

"(1) that he belongs to a racial minority; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that, despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."

Under one prominent exception, an employer will not be deemed to have violated the act when the action taken against an employee is due to a

"bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business."

n Public Employees Retirement System of Ohio v. Betts, the Court rejected the

equal benefits or equal costs" principle, holding that a bona fide employee benefit plan was permissible under the ADEA unless an employee could establish that adoption of the plan was a subterfuge for discrimination.

federal employees are required to seek resolution with the _____________________ at their respective agency prior to filing a charge of discrimination with the EEOC

equal employment opportunity office

In Robinson v. Shell Oil Co., a case involving Title VII of the Civil Rights Act, the Supreme Court held that___________may sue for retaliation

ex-employees

the ADEA permits employers to impose mandatory retirement with respect to certain categories of employees, such as

executives and high policymakers, as well as firefighters and law enforcement officers.

A labor organization is covered by the ADEA if it

exists for the purpose ... of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment."

The Supreme Court, however, recently addressed this issue in Gomez- Perez v. Potter, holding that the ADEA does indeed prohibit retaliation in

federal employment

the Supreme Court held in Smith v. City of Jackson that the ADEA does indeed authorize disparate ___________ claims

impact

In states with age discrimination laws and an agency to administer such laws, the statute requires ADEA claimants to file suit

in state court

An employee may waive his rights under the ADEA if such waiver was

knowing and voluntary.

An examiner is required to have a valid and current

license if required by a State in which the test is to be conducted, and must maintain a minimum of $50,000 bond or professional liability coverage.

Does the Employee Polygraph Protection Act (EPPA cover Federal, state, and local government agencies.

no

Under the ADEA, plaintiffs may also bring a separate type of disparate treatment claim akin to Title VII

pattern or practice" suits, which involve habitual discriminatory actions on the part of the employer. Such class action claims carry a heavy evidentiary burden that follow different rules of proof

an employment agency and its agents are subject to the ADEA if the agency

regularly undertakes with or without compensation" to provide employees for an employer.

EEOC policy states that a filing, in order to be deemed a charge, must contain a request for agency action to

remedy the alleged age discrimination

Proving a Disparate Impact Claim. In Meacham v. Knolls Atomic Power Laboratory

the Supreme Court ruled that the employer is responsible for proving that its action was in fact reasonable. 61 The Court's decision rested in part on its determination that the party who claims the benefits of a statutory exception must bear the burden of proving its actions were justified. 62 Ultimately, the result in the Meacham case appears to make it easier for plaintiffs to prevail in disparate impact cases.

In Oubre v. Entergy Operations, Inc.,

the employee received severance pay in return for waiving any claims against the employer, but the waiver did not fully comply with the ADEA's waiver requirements. The Supreme Court, reasoning that retention of severance benefits does not ratify a statutorily invalid waiver, held that the plaintiff did not have to return the money before bringing suit

Compensatory and punitive damages are not available under the ADEA.

true

Gilmer v. Interstate/Johnson Lane Corp the Court held that an ADEA claim may be subject to compulsory arbitration in accordance with an arbitration agreement contained in an employment contract

true

The Court held in Gilmer v. Interstate/Johnson Lane Corp. that the ADEA does not preclude enforcement of acompulsory arbitration clause

true

True or false the ADEA continues to prohibit an institution from reducing or ceasing non-supplemental benefits on the basis of age.

true

In Louisiana an employer is one who employs ________or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year

twenty

are Companies that are incorporated in a foreign country but that are controlled by a U.S. employer subject to the ADEA

yes

are U.S. citizens employed by a U.S. employer to work in a foreign country covered by the ADEA

yes, unless compliance with the ADEA would violate the laws of that country.

Both private and public employees________generally covered by the ADEA

are

A waiver given in right does not extend to ________employees

federal

. If certain requirements are met, supplemental benefits may be reduced or eliminated on the basis of

age without violating the ADEA

The Lilly Ledbetter Fair Pay Act, signed into law in January 2009, changes when the statute of limitations begins for workers' claims of pay discrimination under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act to declare that

an unlawful employment practice occurs not only when a discriminatory pay decision or practice is adopted but also when the employee becomes subject to the decision or practice, as well as each additional application of that decision or practice. In other words, each time compensation is paid.

Title 1 of Genetic Information Nondiscrimination Act (GINA

applies to group health plans sponsored by private employers, unions, state and local government employers, issuers in the group and individual health insurance markets, and issuers of Medicare supplemental insurance

Title 2 of Genetic Information Nondiscrimination Act (GINA

applies to the same covered entities as Title VII of the Civil Rights Act of 1964, and prohibits use of genetic information in employment, restricts the acquisition of genetic information and strictly limits the disclosure of genetic information.

Supplemental benefits

are those benefits above and beyond retirement or severance benefits generally offered to employees of the institution

Kentucky Retirement Systems v. Equal Employment Opportunity Commission, 38 the Supreme Court recently upheld a state retirement plan that imputed additional years of service to employees who became disabled before becoming eligible for retirement at age 55,

but did not, for purposes of calculating pensions, impute additional years of service to employees who became disabled after they became eligible for retirement

Indeed, in Sprint/United Management Company v. Mendelsohn,

the plaintiff attempted to introduce testimony by several former employees who claimed they had suffered age discrimination at the hands of their supervisors, even though those supervisors worked in another part of the company and were not involved in any discriminatory action taken against the plaintiff. Noting that "[t]he question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors," the Supreme Court held that such evidence is neither per se admissible nor per se inadmissible and therefore the district court should determine the admissibility of such evidence on a case by case basis

The Age Discrimination in Employment Act defines "employer

to include every individual, partnership, association, labor organization, corporation, business trust, legal representative, or organized group of persons who (1) is engaged in an industry affecting commerce (most every industry will affect commerce within the meaning of the ADEA); and (2) has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.

n Erie County Retirees Ass'n v. County of Erie, 42 the Court of Appeals for the Third Circuit ruled that the ADEA applies

to retirees and held that the practice of providing different benefits to older and younger retirees based on their eligibility for Medicare constitutes age discrimination in violation of the act because Medicare eligibility is an "explicitly" age-related factor

Under EEOC regulations, an ADEA complaint must, at a minimum:

1) be in writing, (2) name the prospective respondent, and (3) generally allege the discriminatory acts.

The Age Discrimination in Employment Act carves out a compulsory retirement exceptions:

1. "Bona fide executives" or "high policymakers" - i.e., an employer may impose compulsory retirement on any employee age 65 or older who is either a bona fide executive or high policymaker and who is entitled to receive a nonforfeitable annual retirement benefit of at least $44,000. 2. State and local government may institute a mandatory retirement age of 55 or older for firefighters and law enforcement officers. 3. Airline pilots

When was the Age Discrimination Act passed?

1967

The Department of Labor was originally responsible for enforcement of the ADEA. The authority was transferred to the EEOC in

1978 pursuant to Reorg

he Employee Polygraph Protection Act (EPPA) was passed by Congress in

1988.

Genetic Information Nondiscrimination Act (GINA Has how many titles

2

Lousiana statute on age only protects people who are ___ or above

40

. Originally, the ADEA only covered employees between the ages of

40 and 65

The Supreme Court in EEOC v. Wyoming declared constitutional the extension of the ADEA to state and local government employees as a valid use of Congress' authority under the

Commerce Clause

Congressional employees of the House and Senate are also covered by the ADEA pursuant to the

Congressional Accountability Act of 1995.

In 1978, enforcement authority of the ADEA was transferred from the

Department of Labor to the Equal Employment Opportunity Commission (EEOC

the Age Discrimination in Employment Act ia admininstered by the

EEOC and follows the same theoretical guidelines (disparate impact and treatment).

_____________amended the ADEA to specifically prohibit employers from denying benefits to older employees

Older Workers Benefit Protection Act of 1990 (OWBPA)

The ------------------t (P.L. 101-433), which amended the ADEA, restored the use of the "equal benefit or equal cost" principle after it had been invalidated by the Supreme Court in Betts

Older Workers Protection Ac

When the plaintiff has direct evidence of age discrimination, use of the McDonnell Douglas burden-shifting model is unnecessary, 49 and courts tend to rely instead on the "mixed motive" framework established by the Court in

Price Waterhouse v. Hopkins.

• Pre-Employment Inquiries

The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth.

____________________is the federal law governing age discrimination

The Age Discrimination in Employment Act (ADEA

_________________is responsible for enforcing the provisions of the ADEA.

The Equal Employment Opportunity Commission (EEOC

The Age Discrimination in Employment Act functions similarly to other federal discrimination laws, such

Title VII and the Americans with Disabilities Act (AD

. People elected to office in a state or a political subdivision of the state are excluded from the Age Discrimination in Employment Act , as are the personal staff, policymaking appointees, and immediate advisers of the elected officer True or False

True

Employee Polygraph Protection Act (EPPA) is enfoced and administered by the

Wage and Hour Division (WHD) of the Department of Labor (we have moved out of the EEOC).

In order to bring a disparate impact claim under the ADEA

a plaintiff must first establish a prima facie case of age discrimination by demonstrating that a given employment practice has a disparate impact on members of the protected class. At this stage, a plaintiff must identify the specific employment practice that is responsible for the disparate impact. 60 The employer may then rebut the prima facie case by showing that the adverse impact was attributable to a reasonable factor other than age, a requirement based on the statutory provision that exempts otherwise prohibited employment actions that are based on a reasonable factor other than age.

lie detector includes

a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or similar device (whether mechanical or electrical) used to render a diagnostic opinion as to the honesty or dishonesty of an individual

Proving a Disparate Treatment Claim Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish

a prima facie case, meaning that a plaintiff must allege facts that are adequate to support a legal claim. Once a plaintiff, by a preponderance of the evidence, establishes a prima facie case, then the burden of production shifts to the employer, "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." 51 If the employer successfully rebuts the employee's prima facie case by articulating such a reason, then the employee may still prevail if he can show that the employer's defense is merely a pretext and that the employer's behavior was actually motivated by discrimination. 52 While the burden of production shifts to the employer to rebut the employee's prima facie case, the burden of persuasion remains on the plaintiff at all times.

According to the EEOC's regulations, advertisements that contain phrases such as, _________are prohibited under the act, unless an exception applies

age 25 to 35," "young," "college student," "recent college graduate," "boy," "girl,"age 40 to 50," "age over 65," "retired person," or "supplement your pension

The ADEA defines a labor organization as an

entity that has a hiring hall or is a certified employee representative, or if not certified, holds itself out as the employee's bargaining representative