Employment Law Week 11

What does it mean to be qualified for the position?

" Able to meet the employer's legitimate job requirements. "

What is the prima facie case the employee must provide for a claims of disparate impact?

Step One: A facially neutral policy or rule is imposed by an employer 2. which has a different effect on an older group of workers 3. no intent to discriminate is necessary Step Two: Reasonable factor other than age (RFOA) 1. Economic concerns 2. seniority

What is proof of pretext?

it means that it is no the true reason for the action, that there is some underlying motivation to which the employer has not admitted. - just has to show that age was a determining factor - proving that the offered reasons for the adverse employment action have no basis in fact, didn't actually motivate the a.e actions, or insufficient to motivate the a.e. taken. - "held that an adverse action taken by an unbiased decision maker, but based on information from another worker who has a discriminatory motive, still satisfies a prima facie case

What is the prima facie case for an ee's claim of hostile environment based on age?

"1. The employee is 40 years old or older. 2. The employee was subjected to harassment, either through words or actions, based on age. 3. The 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"

What waivers are allowed under the OWBPA? What requirements exist?

(older workers benefit protection act of 1990) "Exit" strategy by companies. Many companies also request that older workers sign a waiver whereby they relinquish the right to later question the plan by filing an age discrimination action. Once the waiver is signed and the worker accepts the benefits under the plan, the company would like to believe it is safe from all possible claims of discrimination. - must be knowing and voluntary to be valid. - cant bar the employee from filing a claim with the EEOC or participating in investigations with the EEOC 1. The waiver must be written in a manner calculated to be understood by an average employee. 2. The waiver must specifically refer to ADEA rights or claims (but may refer to additional acts, such as Title VII or applicable state acts). 3. The waiver only affects those claims or rights that have arisen prior to the date of the waiver (i.e., the employee is not waiving any rights that will be acquired after signing the waiver). 4. The waiver of rights to claims may only be offered in exchange for some consideration in addition to anything to which the individual is already entitled (this usually involves inclusion in an early retirement program). 5. The employee must be advised in writing to consult with an attorney prior to execution of the waiver (this does not mean that the employee must consult with an attorney, but must merely be advised of the suggestion). 6. The employee must be given a period of 21 days in which to consider signing a waiver, and an additional 7 days in which to revoke the signature. Note that where a waiver is offered in exchange for an early retirement plan, as opposed to some other consideration, the individual must have 45 days in which to consider signing the agreement. 7. If the waiver is executed in connection with an exit incentive (early retirement) or other employment termination program, the employer must inform the employee in writing of the exact terms and inclusions of the program. This information must be sufficient for the employee to test the impact of the selection decision made; in other words, does the decision about inclusion in the program have any discriminatory impact?"

What information does an employer need to keep on file for one year?

- Job applications, résumés, 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

What information does an employer need to keep on file for three years?

- Name -Address - Date of birth - Occupation -Rate of pay - compensation earned each week

How is retaliation protected under the ADEA?

- protects the person filing the complaint and any other person who might have participated in the claim. ex. witness - federal and private sector employees have the same protection -punitive damages are available in retaliation claims

List the employee's prima facie case for disparate treatment

-show that they are 40 or older. - the employer made a decision that adversely affected the employee. - qualified for the position -treated differently from other employees not in the protected class 1. The employee is in the protected class. 2. She or he suffered an adverse employment action (was terminated or demoted). 3. The employee was doing her or his job well enough to meet her or his employer's legitimate expectations. 4. Others not in the protected class were treated more favorably"

What criteria are required to have age as a BFOQ?

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's requirements adequately; or 3. Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.

What is different between ADEA and CRA, title VII?

ADEA: " 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" 1) ADEA is more lenient than Title VII regarding the latitude afforded employers' reasons for adverse employment decisions. The ADEA allows an employer to rebut a prima facie case of age discrimination by identifying any "reasonable factor other than age" that motivated the decision." 2) an employee is not barred from pursuing a claim simply because the employer treated another older worker better 3) the act only protects employees over 40 from discrimination. Unlike Title VII, there is no protection from "reverse" discrimination. Penalties Covered ers Reverse discrimination Burden shifting Mixed motives RFOA versus business necessity BFOQ Disparate impact

What is ERISA?

Employee Retirement Income Security Act - regulates private employee benefit plans - purpose is to protect employees from wrongful denial of all types of benefits, including retirement and pension.

Western Air Lines, Inc. v. Criswell

Facts: - WAL requires that flight engineers, cockpit crew, pilot and co-pilots must retire at age 60. - Airline argued that the age requirement is a BFOQ - FAA claims that with increased age comes psychological and physiological damage and unforeseen health problems Issue: Whether the capabilities of someone over 60 years of age are considered to be a liability, and therefore age restriction as a BFOQ is discriminatory? Finding: Lawful to require pilots to retire at 60, but not flight engineers since there are no FAA requirements

Oubre v. Entergy Operations, Inc.

Facts: Oubre was a scheduler for Entergy Operations 1994 - received a poor performance review 1995 - Oubre's supervisor met with her and she could either improve or accept a voluntary arrangement for severance. She had 14 days to consider and signed it. Came with 6 installments of payments over 4 months, totaling $6,258. Oubre filed suit against Entergy alleging constructive discharge on the basis of her age in violation of the ADEA and state law. - did not offer to return the money nor has the means to do so Oubre's release didn't comply with the OWBPA's safeguards. Issue: Whether an employee relinquishing legal rights is enforceable if the contract didn't meet the standards of the OWBPA in the first place? Finding: No, since it didn't meet the OWBPA it's not enforceable and she has a claim.

Hazen Paper Co. v. Biggins

Facts: Walter Biggins was hired by the Hazens in 1977 and fired him in 1986 at the age of 62. Biggins sued alleging a violation of the ADEA Hazen's claimed he was doing business with their competitors so they terminated him After Biggins was terminated his retirement and pension benefits from vesting. - pension plans vest after 10 years of service for the company Issue: Whether firing an employee who is about to vest their pension benefits is based on years of service constitutes a violation of the ADEA? Finding: No, an employee about to vest his pension is not terminated based on age, but rather years of service which isn't covered.

Gross v. FBL Financial Services

Facts: 1) Gross started at FBL in 1971 2)Gross was 54 working as claims administration director and was reassigned to project coordinator in 2003 3) his previous position was given to a younger employee 4) Gross had evidence that at least part of the decision was made bc of his age 5) FBL said no it was restructuring and that the new position was a better fit for Gross Issue: Whether Gross being terminated by FBL was a legitimate "but-for" causation? Finding: Yes, the plaintiff must prove that age was a "but-for" causation.

What are RFOA?

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. For example, if an employee is not performing satisfactorily and is terminated, her failure to meet reasonable performance standards would constitute a reasonable factor other than age. 1. It makes the existing regulation consistent with the Supreme Court's holding that the defense to an ADEA disparate impact claim is RFOA, and not business necessity. 2. It explains the meaning of the RFOA defense to employees, employers, and those who enforce and implement the ADEA. EEOC considerations: 1. The extent to which the factor is related to the employer's stated business purpose; 2. The 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. The extent to which the employer limited supervisor's' discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes; 4. The extent to which the employer assessed the adverse impact of its employment practice on 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."

What is a RIF?

Reductions in Force

When can age discrimination be proven in the event of a RIF?

The employer refuses to allow the discharged (or demoted) employee to bump others with less seniority, and • The employer hires younger workers when the jobs become available after the employee was discharged (or demoted) at the prior salary of the older worker.

Identify the remedies available for age discrimination.

back pay, front pay, reinstatement. promotion, injunctions, liquidated damages ("Liquidated damages limit awards to a predetermined amount. As used in the ADEA, liquidated damages are equal to the unpaid wage and are available in cases involving "willful violations" of the statute." - no other equitable relief -no compensation for pain or emotional distress under ADEA

When can employers require mandatory retirement?

small number of high-level employees with substantial executive authority can be subjected at age 65 or beyond if the individual will receive a company pension of $44,000 or more exemptions - tenured faculty in higher education