MOD 12 last test age discrim

Is an employer's desire to layoff employees in order to reduce payroll expenses an RFOA (since a reduction in force would adversely affect older, higher-paid employees)?

Yes, economic and budgetary factors may be a valid reason for terminating an older employee. Courts usually absolve an employer from liability where the employer follows a specified, objective procedure and the entire position is eliminated (not simply replaced with a younger, lower-paid employee).

What does ask really involves are those situations where employees are offered amounts of money in form of retirement plans as incentives for leaving a company. this way the company is not terminating an older worker and thereby cannot in theory be held liable under a aDEA

Older workers benefit protection act

The employer has the burden of proving that the employment decision, which may adversely affect older workers, was based on a reasonable factor other than age.

Reasonable Factor Other than Age (RFOA) Defense

What can an employee sue for under ADEA?

-----Back-pay: pay that the employee would have received if the violation did not occur. -------Front-pay: a reasonable and expected amount of pay that the employee would have received until the time of his or her expected retirement. Other types of money damages (i.e., pain and suffering, emotional distress, punitive) are not permitted. Punitive damages, however, are permitted in age retaliation claims. Equitable Relief (relief other than money, such as reinstatement, lost promotions) are not permitted. An employee can also sue for attorney's fees under the ADEA.

A reduction in force occurs when a company is forced to downscale its operations to address rising costs. In the event of an RIF, age discrimination may be proven when

1) The employer refuses to allow a discharged or demoted employee to bump others with less Senority 2) The employer hires younger workers when jobs become available

An employee who believes that he or she has been the victim of age discrimination has several options. The legal options are not mutually exclusive; pursuing one option does not prevent the employee from later pursuing one or more of the other options.

1) internal procedure 2) EEOC 3) Stte agency 4) federal lawsuit ------An ADEA-based lawsuit may be filed any time after 60 days from filing claim with EEOC. In other words, although the employee must first file a claim with EEOC, the employee does not need a right-to-sue letter to commence an ADEA-based lawsuit (29 CFR Part 1626.18(b)). This is different than with a Title VII-based lawsuit. 5)State lawsuit ----Why file a state lawsuit? If the federal time limits have expired, or if state law provides greater recovery.

To determine reasonableness of RFOA, the EEOC considers five factors:

1)Relationship of the factor (to reduce payroll expenses) to the employer's stated purpose or goal (to improve its financial position); 2) Extent to which the factor was well-defined and fairly applied (objective); 3) Extent to which the employer limited supervisors' subjective discretion; 4)Extent to which the employer assessed the adverse impact on older workers; and 5)The degree of harm suffered by older workers, and the extent to which the employer took steps to reduce the harm.

Age harrasment is not a valid claim under adea

FALSE

Ag disc. EE0c points out that the employer need not show that the factor has been dated by studies or other formal means typically required to establish a "bus necessity" defense, but only that "their choices are reasonable."

T

ADEA time limits: must file with EEOC within

180 days after discrimination occurs, and must commence lawsuit within 90 days after EEOC issues a "right-to-sue" letter

The ADEA applies to all employers (government entities and private companies) that employ _____or more employees (29 USC 630(b)).

20 The statute applies to employees and job applicants who are age 40 and above (there is no upper age limit); individuals who are under the age of 40 may be discriminated against based on their age (29 USC 631(a)).

Employees are protected against discrimination on the basis of age under the ADEA unless

Age is a bona fide occupational qualification

Older workers benefit protection act

Concerns the legality and enforceability of early retirement incentive programs and waivers of rights under ADEA and it prohibits age discrimination in the provision of employee benefits

Catherine, aged 59, is employed as a makeup artist with a local department store. The company hires a new manager, Ryan. Ryan fires Catherine and gives her job to Katrina, aged 42. Under the ADEA, Catherine: A. does not have a valid claim because Catherine's replacement must be at least 20 years younger than Catherine. B. does not have a valid claim because the person who hired her is not the one who fired her. C. has a valid claim because the employer did not correctly apply the provisions of Title VII. D. has a valid claim even though her replacement is a member of the protected class.

D

Chris, 62, applies for a job at Turnhook Fishing Corp. The company has concerns that applicants over age 40 will not be able to handle the strenuous nature of the job. It implements a requirement that all applicants have uncorrected 20/20 vision in hopes of weeding out older candidates. Which of the following claims is most likely to be made against Turnhook? A. Reverse discrimination claim. B.Quid pro quo claim. C. Hostile work environment claim. D. Disparate impact claim.

D

Under ADEA, if an employer uses the bona fide occupational qualification as a defense to an age discrimination claim, the employer must prove that: A. it pays all of its workers in that category the same salary regardless of their age. B. all or substantially all of the members of that category are not preferred by the employer's customers. C. it has hired older workers for other roles including executive, managerial, and other supervisory roles. D. all or substantially all of the members of that category are unable to perform the job requirements adequately.

D

How does an employer know if its policy or decision will be deemed an RFOA by a judge or the EEOC?

EEOC: An RFOA may be the basis for an employment decision if it is "objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA under like circumstances."

A plaintiff must prove the following factors for a prima facia case for age disparate treatment:

Employee belongs to the protected class (40 years or older) Employee was qualified for a job (i.e., able to meet the employer's legitimate job requirements Employee suffered an adverse employment action (i.e., not hired, pay cut, demotion, fired) A younger individual (whether or not in the protected class) was treated more favorably (the plaintiff must simply prove that a younger individual was treated more favorably, regardless of whether the younger individual is or is not in the protected class.)

To ensure that appropriate and adequate information exists as to hiring practices in connection with age, the ADEA has specific record-keeping requirements for employers:

Employers are required to maintain certain employee information for three previous years (i.e., name, address, DOB, rate of pay, weekly compensation, etc.). If the employer uses personnel information for certain decisions, the employer is required to maintain that information for one year from the date of the personnel action (i.e., job applications, resumes, records pertaining to failure or refusal to hire applicants, promotions, demotions, results of physical exams, job ads).

If an employee who believes that his employer has engaged in age discrimination files a complaint with the EEOC, he cannot file a lawsuit in state court under state age discrimination laws as these legal options are mutually exclusive.

F

compensatory (pain & suffering) and punitive damages (meant to punish wiring doer) are permitted under ADEA

FALSE

Is a business necessity a Defense to an ADEA disparate impact claim?

No, only RFOA is

DISPARATE TREATMENT Step One: Employee's prima face case 1. The employee is in the protected class. 2. She or he was terminated or demoted. 3. The employee was doing her or his job well enough to meet her employer's legitimate expectations. 4 Others not in the protected class were treated more favorably. Step Two: Employer defenses 1. Bona fide occupational qualification. Step Three: Employee may evidence pretext for employer actions.

T

EBOC points out that the employer need not show that the factor has been vali- dated by studies or other formal means typically required to establish a "business necessity" like they would for title 7 defense, but only that "their choices are reasonable."

T

The ADEA prohibits an employer from retaliating against an employee who files an age discrimination complaint, or assists in the complaint: Punitive damages are permitted for retaliation claims, but not for routine age discrimination claims.

T

Bona Fide Occupational Qualification Defense for ADEA?

The age limit is reasonably (absolutely?) necessary to the normal operation ("essence") of the employer's business; and EITHER 1) All (or substantially all) of the individuals over that age are unable to adequately perform the job requirements; OR 2) Some individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.(this allows an employer to exclude an older worker from a certain position that may be unsafe to some older workers). The evidence supporting the BFOQ must be credible, not just the employer's opinion.

Age requirement of a job is a bona fide occupational qualification. this can be done by showing

The age limit is reasonably necessary to the employers business AND All or a substantial number of people over the age are unable to perform the requirements of a job adequately OR Some of the people over that age possess a trait that disqualifies them for the position and it cannot be ascertained except by reference to age

To demonstrate a BFOQ in an age discrimination case brought under the ADA an employer must prove that

The age limit is reasonably necessary to the essence of the employers business All or substantially all of the individuals over that age are unable to perform the jobs requirements adequately Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to Age

Where there is no direct evidence of age discrimination, the employee can show pretext by proving:

The employer's reason for the decision has no basis in fact, or The employer's reason for the decision did not actually motivate the adverse employment action, or The employer's reason for the decision was insufficient to motivate the adverse action taken, or The employer presents conflicting reasons for the adverse employment action.

. Leslie is a midlevel manager at Scruffle, Inc. When she attained the age of 60, her company forced her to take mandatory retirement in exchange for an annual pension of $40,000. Leslie decides to file an age discrimination suit against Scruffle. Which of the following statements is true? A. Leslie will most likely lose because it is legal for companies to subject managers, regardless of their supervisory level, to mandatory retirement. B. Leslie will most likely lose because it is legal for companies to subject managers to mandatory retirement as long as they receive a company pension. C. Leslie will most likely win because it is illegal for companies to subject midlevel managers to mandatory retirement. D. Leslie will most likely win because it is illegal for companies to subject managers, regardless of their supervisory level, to mandatory retirement before they turn 65.

c

Mandatory retirement is an employer's policy that requires an employee to retire upon reaching a specified age (usually 65). It has been made illegal for most employees as a result of a 1986 amendment to the ADEA. Mandatory retirement is limited to

certain high-level corporate executives (those with substantial executive authority) who will receive a company pension of $44,000 or more per year, and police officers and firefighters.

Which of the following statements is true of the ADEA? A. It is less lenient than Title VII regarding the latitude afforded employers' reasons for adverse employment decisions. B. It only allows employees to pursue a claim if an employer discriminated against all of its older workers. C. It only protects employees over 60 from discrimination. D. It does not provide protection from reverse discrimination

d. It does not provide protection from reverse discrimination

Similar to Title VII, there are two types of discrimination that exist under the ADEA: ( Age Discrimination in Employment Act of 1967)

disparate treatment/impact

What is a waiver?

intentional relinquishment of a known right. This issue usually arises when an employer offers a severance payment to an older employee in return for the employee accepting early retirement. Since the employer did not discharge (terminate) the employee, the employer (in theory) cannot be held liable under the ADEA. The waiver may not prevent the employee from filing a claim with the EEOC.

The US Supreme Court held in Oubre v. Entergy Operations, Inc. (522 US 422, 1998), that an employee who signs a defective waiver

is not required to give back the benefits received as a pre-condition to filing suit challenging the waiver. The EEOC issued a regulation agreeing with the US Supreme Court in 2001.

State laws on age discrimination vary widely. Most states have age discrimination statutes, but Some states' statutes are identical to ADEA Some states' statutes provide "greater protection" than ADEA No state can provide less protection than ADEA.

t

One difference between the RFOA defense to an ADEA disparate impact claim and the business necessity defense to a Title VII disparate impact claim is that with the RFOA defense,

the employee is NOT given an opportunity to show that there is a way of addressing the employer's issue (that gave rise to the employer's policy) in a better way (i.e., a way that has a less adverse impact on the protected class).