HRM 157 Chpt. 12

Gibson Foods, Inc. and Thompson Foods, Inc. have merged to form a new corporation, Better Food, Inc. In the process of consolidating the business, management decides that a reduction in force is necessary to avoid duplication of positions and generally streamline the running of the new company, thereby lowering the operating costs. Paul is a production manager and his job is eliminated. He is 51 years old and believes that he was targeted because of his age. A. Better Food will automatically be liable for age discrimination if the company retained any employees younger than Paul. B. Better Food can defend the claim for age discrimination if it can provide a reasonable factor other than age for Paul's termination. C. Better Food can eliminate its liability having Paul sign a waiver which prevents him from filing a claim with EEOC or participating in EEOC investigations. D. Better Food can defend the claim for age discrimination because a RIF is exempt from ADEA protection.

B. Better Food can defend the claim for age discrimination if it can provide a reasonable factor other than age for Paul's termination.

Bob Hughes is 57 years old and was employed by the state as a school bus driver. He had an exemplary record, with no accidents in the 27 years he was employed by the state. Bob was replaced by a younger man, age 31. He filed a claim with EEOC for age discrimination. A. Bob has a valid claim because he can establish all of the elements of a prima facie case. B. Bob cannot file a claim for age discrimination because he is a state employee. C. Bob is a state employee and must file his pursuant to OWBPA, not with EEOC. D. Bob does not have a claim for age discrimination because he was not more qualified than his replacement.

B. Bob cannot file a claim for age discrimination because he is a state employee.

A trait other than age, which is highly correlated with a particular age or age group, is known as. A. a disparate impact factor. B. a BFOQ. C. a proxy for age. D. an ageist indicator.

C. a proxy for age.

Casey McDowell is a Senior Vice President of the Dynamic Pharmaceuticals Company. Casey receives a salary of $249,000, plus bonuses and stock options. She has just been notified by the HR department that she will have to retire when she turns 65 next year. Casey will receive an annual pension of $166,000. She has known about the mandatory retirement policy but she feels it is unfair because her division met or exceeded all of its goals last year and she is as productive as she has ever been. A. Casey can file a complaint under the ADEA because mandatory retirement at age 65 is now considered age discrimination. B. Casey can file a complaint under the ADEA because she is neither a police officer nor a firefighter, for whom mandatory retirement is permitted under the ADEA. C. Casey cannot file a complaint under the ADEA because mandatory retirement at age 65 is permitted for high-level employees with substantial executive authority if the individual will receive a company pension of $44,000 or more. D. Casey cannot file a complaint under the ADEA because mandatory retirement at age 65 is permitted for high-level employees with substantial executive authority if the individual is paid a salary of at least $100,000.

C. Casey cannot file a complaint under the ADEA because mandatory retirement at age 65 is permitted for high-level employees with substantial executive authority if the individual will receive a company pension of $44,000 or more.

The ADEA: A. protects all persons against age discrimination in employment. B. protects all employees who are at least 40 years of age, against age discrimination in employment. C. protects all persons who are at least 40 years of age, against age discrimination in employment. D. protects all employees who are between the ages of 40 and 70 against age discrimination in employment.

C. protects all persons who are at least 40 years of age, against age discrimination in employment.

Remedies available in an age discrimination claim under ADEA include: A. Back pay B. Front pay C. Liquidated damages D. All of the choices are correct

D. All of the choices are correct

Principle enforcement of the ADEA is by: A. state courts. B. federal courts. C. the NLRB. D. the EEOC.

D. the EEOC.

Leslie is a 47 year old woman. She works at the Bulova Gentlemen's Club as a head waitress. When she applies for a position as a topless dancer at the club, she is told that she is too old. Several waitresses, all in their twenties, are selected. Leslie brings a claim under the ADEA. Bulova asserts a BFOQ of "attractiveness" that requires its topless dancers to be "beautiful, nubile and erotic." A. Leslie can prevail on a claim because she is attractive and physically fit and other clubs have hired women over the age of 40 to dance topless. B. Bulova will prevail because the essence of its business permits it to assert the BFOQ. C. Bulova will prevail because only a handful of women over age 47 are able to perform the job's requirements adequately. D. Leslie can prevail because her mother was a strip-tease artist until she was 57 years old.

A. Leslie can prevail on a claim because she is attractive and physically fit and other clubs have hired women over the age of 40 to dance topless.

Scott Murphy was hired as a computer software engineer by Oberon Technology's Chief Computer Scientist, Alicia Monroe. He was 46 at the time he was hired. He worked for the company for 5 years and then was terminated by Alicia for poor performance. Scott filed a claim for age discrimination. A. Oberon can use the "same actor" defense in this case. B. Oberon will be liable because Scott is a member of the class of workers protected by the ADEA. C. Scott will have to offer evidence that other workers over the age of 40 were also terminated in order to prevail. D. None of the choices are correct.

A. Oberon can use the "same actor" defense in this case.

In O'Connor v. Consolidated Coin Caterers, the U.S. Supreme Court held that: A. a plaintiff is not precluded from stating a claim for age discrimination if the person receiving the workplace benefit that had been sought by the plaintiff was a younger individual, even if the younger individual is over 40 years of age. B. a plaintiff is precluded from stating a claim for age discrimination if the person receiving the workplace benefit that had been sought by the plaintiff was a younger individual who is also over 40 years of age. C. claims of disparate impact discrimination are not recognized under the ADEA. D. an act which violates ERISA will, as a matter of law, violate the ADEA.

A. a plaintiff is not precluded from stating a claim for age discrimination if the person receiving the workplace benefit that had been sought by the plaintiff was a younger individual, even if the younger individual is over 40 years of age.

In the case of Hazen Paper Co. v. Biggins, the Supreme Court said it was permissible for an employer to terminate an employee in order to prevent the employee from vesting in the company pension plan because A. age and years of service are analytically distinct (i.e., the employer's action was based on plaintiff's eligibility to receive a pension and not his age). B. Supreme Court justices are appointed for life so they don't have to worry about receiving a pension. C. plaintiff had worked for the company for less than ten years. D. an older worker is always more likely to vest in a pension than a younger worker.

A. age and years of service are analytically distinct (i.e., the employer's action was based on plaintiff's eligibility to receive a pension and not his age).

An employer who raises the "same actor" defense asserts that A. when a worker protected by ADEA is hired and fired by the same person, there is a permissible inference that the employee's age was not a motivating factor in the decision to terminate. B. employees in the motion picture, television and theater industries are not protected under the ADEA if they are replaced by a younger performer who has already performed the part in another production. C. when an employee signs a defective waiver under the OWBA, the employee must repay any benefits received under the defective waiver. D. when other persons had influence or leverage over the official decision maker, and thus were not ordinary co-workers, it is proper to impute their discriminatory attitudes to the formal decision maker.

A. when a worker protected by ADEA is hired and fired by the same person, there is a permissible inference that the employee's age was not a motivating factor in the decision to terminate.

Carlos, age 24, and Samuel, age 47, are employed as security officers for Jackson Security Co. In an effort to retain qualified officers and to be more competitive with the salaries offered by the police department, Jackson developed an incentive plan which provided for higher raises for younger officers. As a result, Jackson gave Carlos a higher raise than Samuel. Samuel filed a claim for age discrimination. A. Jackson will be liable for age discrimination because it treats older workers differently than its younger workers. B. Jackson will not be liable for age discrimination because the ADEA allows for different treatment when it is based on a reasonable factor other than age. C. Jackson will be liable for age discrimination because Samuel did not file a waiver. D. Jackson will not be liable for age discrimination because Samuel was given a raise and his seniority status was not affected.

B. Jackson will not be liable for age discrimination because the ADEA allows for different treatment when it is based on a reasonable factor other than age.

Skepticism exists regarding the use of statistics in age discrimination cases because A. most lawyers are incapable of understanding statistical terms such as "expected value" and "standard deviation." B. even in the absence of discrimination, older workers are likely to be replaced by younger workers as a result of attrition of the workforce. C. in a disparate treatment class action or "pattern and practice" suit, only gross statistical disparities make out a prima facie case of discrimination. D. All of the choices are correct.

B. even in the absence of discrimination, older workers are likely to be replaced by younger workers as a result of attrition of the workforce.

Claims of disparate impact under the ADEA are harder to win than under Title VII because A. Congress has specified that discrimination based on age is less frequent than discrimination based on race, color, national origin or sex. B. the BFOQ defense is allowed under the ADEA but not under Title VII. C. the ADEA permits an employer to discriminate when the differentiation is based on a reasonable factor other than age (RFOA). D. age discrimination is often based on indifference and stereotyping than hatred or overt hostility.

C. the ADEA permits an employer to discriminate when the differentiation is based on a reasonable factor other than age (RFOA).

48. (p. 538-539) Charlton Wayne, aged 63, was a manager at the Old World Exotic Wood Furniture Company. His supervisor, Dolores, frequently made age-related comments about Charlton to other workers. These included calling him "old man," "old fogey," and "old fart." On one occasion, when Charlton arrived for a meeting, she told another employee to "go get the wheelchair for the senior citizen." At a different meeting, she asked Charlton, "What's your idea old-timer?" If he disagreed with her, she would call him "senile." She even said that he was "too old to get it up any more." Charlton decided he'd had enough and filed a complaint under the ADEA. Charlton can make out a prima facie case of A. quid pro quo discrimination. B. hostile work environment discrimination. C. disparate impact discrimination. D. OWBPA discrimination.

B. hostile work environment discrimination.

If an employer uses the BFOQ as a defense to an age discrimination claim, EEOC requires the employer to prove: A. that some of the individuals over a certain age have disqualifying traits that cannot be ascertained except by age. B. that substantially all older workers are unable to perform the job. C. that based on the job, it would either be dangerous or inefficient to hire the older worker. D. None of the choices are correct.

B. that substantially all older workers are unable to perform the job.

The Older Workers' Benefit Protection Act of 1990 was passed by Congress A. to force employers to compensate older employees subjected to age discrimination. B. to address the legality and enforcement of early retirement programs that required older workers to waive their rights under the ADEA. C. to make early retirement programs that required waivers illegal. D. None of the choices are correct.

B. to address the legality and enforcement of early retirement programs that required older workers to waive their rights under the ADEA.

In the event of a RIF, age discrimination may be proven if A. the employer allows a discharged or demoted employee covered by the ADEA to bump others with less seniority. B. when jobs become available after the RIF, the employer hires younger workers at the same salary as the employee who was discharged or demoted. C. the employee was fired in order to prevent his pension from vesting. D. None of the choices are correct.

B. when jobs become available after the RIF, the employer hires younger workers at the same salary as the employee who was discharged or demoted.

Harry has worked for Very Fast Delivery Service for 35 years. His job includes loading and driving trucks, as well as driving the trucks to residential and commercial locations and hand delivering items to the recipient. He is 60 years old and has been fired. He brings action under the ADEA for age discrimination. Very Fast will prevail if they can show: A. Harry's eyesight requires him to wear glasses to maintain 20/20 eyesight. B. Harry is suffering from depression since his wife died and his kids moved out. C. Harry's arthritis has become so troublesome that he cannot lift his arms above his shoulders and he can't lift more than 10 pounds. D. Both A and C.

C. Harry's arthritis has become so troublesome that he cannot lift his arms above his shoulders and he can't lift more than 10 pounds.

Marta is 57 and has been a store manager for Ambrose & Company for 10 years. Ambrose & Company is a retail store for fashion forward women. Ambrose undergoes a restructuring and releases this statement to its customers: "Ambrose & Company values its customers and appreciates their patience and loyalty while Ambrose undergoes a company facelift. Ambrose looks forward to unveiling a more youthful and spirited Ambrose image soon." Four days after that statement was released, Marta was demoted to inventory manager and she no longer had customer contact. A month later Marta filed a complaint with EEOC and the following week, Marta was fired. I. Marta's age discrimination claim is not actionable if her demotion was based on poor performance, but she has an actionable claim based on unlawful retaliation. II. Marta's age discrimination claim is actionable if her demotion was based on her age and she has an actionable claim for unlawful retaliation. III. Marta's age discrimination claim is actionable if her demotion was based on her age, but she does not have an actionable retaliation claim because ADEA does not have a retaliation provision. A. I only B. II only C. I and II D. III only

C. I and II

Laura Mills is 55 years old. She has been employed with PilotCo for 17 years. She was offered early retirement and asked to sign a waiver of her right to file a claim under the ADEA. Laura was given 21 days to review the waiver and sign it. Laura was out of work due to illness for 17 days. When she returned to work, she signed the waiver after being reminded that she only had 4 days left to make a decision. Several days later Laura changed her mind and decided to file a claim for age discrimination. A. Laura has no recourse since she voluntarily signed the waiver. B. Laura can file the claim for age discrimination because she was sick when she signed the waiver. C. Laura can file the claim for age discrimination because the waiver did not comply with the requirements specifying that each employee be given 45 days to review the waiver. D. None of the choices are correct.

C. Laura can file the claim for age discrimination because the waiver did not comply with the requirements specifying that each employee be given 45 days to review the waiver.

A willful violation of the ADEA can result in an award of liquidated damages which is A. the total of back pay, front pay and any other unpaid wage liability owed to the employee-plaintiff. B. compensation for pain and suffering. C. an amount that is equal to any unpaid wage liability and results in a doubling of the unpaid wage liability. D. an amount sufficient to punish the wrong doer from willfully violating the ADEA in the future.

C. an amount that is equal to any unpaid wage liability and results in a doubling of the unpaid wage liability.

Ricardo applied for a sales position at J Drew, a clothing store. He was not hired and Ricardo thinks it is because he is 44 and older than the other sales people. A. Ricardo does not have an actionable claim under ADEA if he has no sales experience and J Drew only hires sales people with sales experience. B. Ricardo does not have an actionable claim under ADEA if J Drew has only 14 employees. C. Ricardo does not have an actionable claim under ADEA if the person hired instead of Ricardo is 41. D. All of the choices are correct

D. All of the choices are correct

Can an employer lower the amount of benefits it offers its employees without violating the ADEA? A. Yes, if the change is made in accordance with the Employee Retirement Income Security Act (ERISA), which is the federal law governing employee benefits. B. Yes, if the change is the same for all employees who are similarly situated regardless of age. C. Yes, if different benefits are provided to younger and older workers based on a significant difference in the cost of providing the benefits to the older workers. D. All of the choices are correct.

D. All of the choices are correct.

In November 2006, Mercury Global Media, Inc. hired Sam Smith as a television producer in one of its television stations. At the time, Sam was 58 years old and had over 30 years experience in radio and television. A little over six months later Mercury notified employees that it was selling that station and that the employees would receive special consideration for other positions with Mercury, including other radio and TV stations, Internet video operations and similar entities. Sam applied for a job as a video editor with one of Mercury's subsidiaries but was not hired. A younger displaced employee was given the job. Sam was told that he was not hired because he was "over qualified and over specialized." Sam files a complaint under the ADEA. A. Sam can argue that the Mercury's use of the terms "over qualified and over specialized" in its reason for not hiring him demonstrate a pretext for age discrimination. B. Mercury can argue that it is reasonable for an employer to reject an applicant whose qualifications are excessive because it believed the job would not challenge him, and, therefore, he would continue to seek other employment. C. Sam can argue that an applicant in his age group who is hired is unlikely to continue to seek other employment because of the difficulty in someone his age finding another job. D. All of the choices are correct.

D. All of the choices are correct.

Catherine, aged 59, was employed as a make-up artist with a local department store. The company hired a new manager. He fired Catherine and gave her job to Katrina, age 42. Catherine is alleging age discrimination. A. Catherine cannot claim age discrimination because Katrina at age 42 is a member of the protected class as well. B. Catherine cannot claim age discrimination because the employer has a mandatory retirement age. C. Catherine can claim age discrimination because the employer did not correctly apply the provisions of OWBPA. D. Catherine can claim age discrimination even though her replacement was a member of the protected class.

D. Catherine can claim age discrimination even though her replacement was a member of the protected class.

In Oubre v. Entergy Operations, Inc., the Supreme Court held A. If an employee signs a waiver under the OWBPA but there is a small or technical defect in the waiver, the employee must repay any money received in exchange for the waiver before being allowed to sue the company for age discrimination. B. An employee who signs a waiver under the OWBPA that is defective for any reason must repay any money received in exchange for the waiver before being allowed to sue the company for age discrimination. C. If an employee signs a waiver under the OWBPA but there is a large or significant defect in the waiver, the employee must repay any money received in exchange for the waiver before being allowed to sue the company for age discrimination. D. If a waiver doesn't fully comply with the OWBPA, the employee can keep the money the employer gave her for a release of age discrimination claims and file an age discrimination suit anyway.

D. If a waiver doesn't fully comply with the OWBPA, the employee can keep the money the employer gave her for a release of age discrimination claims and file an age discrimination suit anyway.

Steve is 28 years old and Edie 38 years old. Both started working for their employer 9 ½ years ago and both will vest in their pension and retirement funds in 6 months. If they are both immediately fired: A. Steve will have a valid ADEA claim because the firing appears to be related to terms of service. B. Edie will have a valid ADEA claim because the firing appears to be related to terms of service and she is older than Steve. C. Both Edie nor Steve will be afforded ADEA protections. D. Neither Edie nor Steve will be afforded ADEA protections.

D. Neither Edie nor Steve will be afforded ADEA protections.

A BFOQ defense against a claim of age discrimination, based on the fact that some people over a certain age have a trait which cannot be ascertained except by reference to age, can be established by A. requiring all employees or applicants over the certain age to take a medical examination. B. requiring all employees over a certain age to take a psychological examination. C. requiring all employees over a certain age to go to vocational rehabilitation. D. None of the choices are correct.

D. None of the choices are correct.

Connie, aged 47, is a supervisory field agent for the Federal Bureau of Investigation. She has been transferred from a field office in Ohio to FBI headquarters in Washington, DC. She believes that her transfer was based on her age. Even if she is correct, she will have no claim for age discrimination because A. the ADEA applies to employees of private employers, but not to federal government employers. B. the ADEA applies to federal government employers but not to employees who work in law enforcement. C. a transfer from one city to another is not an adverse employment action for which a complaint can be filed. D. None of the choices is correct.

D. None of the choices is correct.

In Gross v. FBL Financial Services, Inc., the Supreme Court held that: A. disparate impact claims are unavailable under ADEA. B. disparate treatment claims are unavailable under ADEA. C. punitive damages are unavailable under ADEA. D. None of the choices is correct.

D. None of the choices is correct.

Protection against "reverse discrimination" under the Age Discrimination in Employment Act means that A. an employee who is less than 40 years of age can bring a case for discrimination if a person who is 40 or over is treated more favorably. B. an employee who is over 40 years of age can bring a case for discrimination if a person who is older than the employee is treated more favorably. C. an employee who is at least 21 but less than 40 years of age can bring a case for discrimination if a person who is 40 or over is treated more favorably. D. None of the choices is correct.

D. None of the choices is correct.

Murphy has been turned down for a job as an ambulance driver because of her age, on the grounds that most individuals her age have certain health-related characteristics that legitimately exclude them from effective service as ambulance drivers. Murphy was never individually evaluated to determine whether she possessed the disqualifying characteristics. A. Under the U.S. Supreme Court's ruling in Metz v. Transit Mix, Inc., Murphy has suffered age discrimination, because age-related health factors cannot, as a matter of law, be the basis of a BFOQ. B. Under the U.S. Supreme Court's ruling in Western Air Lines, Inc. v. Criswell, Murphy has suffered age discrimination, because even legitimate, age-based job requirements are impermissible unless each applicant, or employee, as the case may be, has been evaluated for job fitness in light of the requirement. C. Under the U.S. Supreme Court's ruling in Metz v. Transit Mix, Inc., Murphy has not suffered age discrimination, because age-related health factors can, as a matter of law, be the basis of a BFOQ. D. Under the U.S. Supreme Court's ruling in Western Air Lines, Inc. v. Criswell, Murphy has not suffered age discrimination, because discrimination against individuals above a given age is permissible if, generally, such individuals are likelier to have a particular disqualifying trait, and it would be impractical to evaluate every individual above the given age to determine who did and who did not have the trait.

D. Under the U.S. Supreme Court's ruling in Western Air Lines, Inc. v. Criswell, Murphy has not suffered age discrimination, because discrimination against individuals above a given age is permissible if, generally, such individuals are likelier to have a particular disqualifying trait, and it would be impractical to evaluate every individual above the given age to determine who did and who did not have the trait.

An individual is qualified for a position if: A. she is able to meet the employer's stated job requirements. B. she has held a similar position, with another business. C. an employer has failed to specify the conditions under which an applicant or employer would not be qualified. D. she is able to meet the employer's legitimate job requirements.

D. she is able to meet the employer's legitimate job requirements.

A statutory defense to a prima facie case of age discrimination is accomplished by A. the employer's demonstration that the adverse decision complained of by the plaintiff was motivated by any factor other than age. B. proof that the employer's complained of actions were not premised on age, but were, instead, premised on a proxy for age. C. reliance on the BFOQ provisions of ERISA. D. the employer's demonstration that the adverse decision complained of by the plaintiff was motivated by any reasonable factor other than age.

D. the employer's demonstration that the adverse decision complained of by the plaintiff was motivated by any reasonable factor other than age.