MGMT 430 - Employment Discrimination Law - Quiz 6

discrimination against employees or job applicants who are 40 or older *because of their age.*

What does the Age Discrimination in Employment Act prohibit?

by a preponderance of the evidence that age was the "but for" cause of the employer's adverse decision

What must an ADEA plaintiff prove?

ERISA

What statute is violated when an employer unlawfully could fire an employee in order to prevent his pension benefits from vesting.

1992

When was ADA effective?

1967

When was the ADEA enacted?

Under the FLSA... and thus the ADEA

a successful plaintiff can recover liquidated damages (double back wages) if he/she proves it was a "willful violation" of the Act.

40 years or older

How old do you have to be to bring a lawsuit under the ADEA?

4th element of ADEA Prima Facie Case: Defendant Friendly

Plaintiff must provide circumstantial or direct evidence that the employer intended to discriminate on the basis of age in reaching its employment decision.

older, younger

Statistically, __________ workers continue to experience longer periods of unemployment than __________ workers. - Further, age discrimination cases account for about 23% of all discrimination charges filed with the EEOC.

substantially younger

Supreme Court held that the fact that the replacement worker is "_____________________" than the plaintiff is a far more reliable indicator of age discrimination.

3 ways a plaintiff can show pretext in an ADEA claim

- Employee's termination was inconsistent with employer's RIF criteria; - Employer's evaluation of plaintiff was falsified to cause termination; or - "Evidence that the RIF is more generally pretextual."

How is the ADA similar to Title VII?

ADA prohibits discrimination in all employment practices, including hiring, firing, advancement, compensation, training, and other terms, conditions, and privileges of employment.

YES

If a plaintiff succeeds in her ADEA claim, should her employer be allowed to offset the severance amount against any recovery?

YES, if voluntary

Is early retirement lawful?

3 requirements for exception to mandatory retirement

The employee must be at least 65 years of age; the employee must have been employed for the two-year period immediately before retirement in a bona fide executive or a high policymaking position; and the employee must be entitled to an immediate nonforfeitable annual retirement benefit from the pension, profit sharing, savings or deferred compensation plan of at least $44,000 a year. *third element is hardest to come across and this is why this exception is hardly ever seen anymore

TRUE

True or False: Age and years of service are analytically distinct

TRUE

True or False: The evidentiary and proof approach used in Title VII litigation is generally followed in ADEA litigation.

examples of age-proxy

high salary and seniority

What is substantially younger?

majority of federal circuits have held that an age difference of less than ten years is not significant enough to establish a prima facie case of age discrimination.

Reasonable Accommodation

modification or an adjustment to a job or to the work environment that will enable an employee with a disability to perform essential job functions. *the question is whether the person can perform the essential functions of the job with or without a reasonable accommodation*

Who does the ADA apply to?

private employers with 15 or more employees and, notwithstanding its title, is not only applicable to "Americans."

expense claim

protect an individual who had a spouse with a disability and the the employer's fear that it would drive up its health care costs.

"Individual With A Disability": Third Definition

protects individuals who are regarded as having a substantially limiting disability, even though they may not have such an impairment. For example, this provision would protect a severely disfigured individual from being denied employment because an employer feared the "negative reactions" of others.

legal term

In the context of the ADA, is "disability" a legal term or a medical one?

ADEA allows the claim to move forward

Is fourth element of prima facie case under the ADEA provable when the unsuccessful applicant is 55 and the person hired in his place is 41, does this establish a prima facie case of age discrimination?

YES

Is proving a mixed motives case different under the ADEA than under Title VII?

NO

Is the ADEA a part of Title VII?

YES

Is the ADEA part of the Fair Labor Standards Act (FLSA)?

NO

Is there a disparate treatment claim when the factor motivating the employer is some feature other than the employee's age? such as a pension about to vest?

No ADEA claim there would be a claim under Title VII

Is there an ADEA claim if an employer fired an older Black worker because the worker is Black? What about under Title VII?

Hazen Paper Co. v. Biggins

Issue: is ADEA violated when employer fires an employee becuse their pension is about to vest? Holding: the employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service *Essentially the court struck down the whole correlation (age-proxy) thing* - said statute says "because of age" not because of seniority/years of service

Undue Hardship

"an action requiring significant difficulty or expense" when considered in light of a number of factors. employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business.

Gross v. FBL Financial Services

(Mixed motives case) Supreme Court decided that an employee bringing an age discrimination case has to prove not only that age was a motivating factor in the employer\'s decision, but that it was the \"but for\" cause of the decision (that is, that the decision would not have been made if not for the employee\'s age).

Releases: An Overview

- Employer makes decision to discharge employee; üEmployer is concerned that employee will sue for discrimination under one or more federal or state statutes (e.g., Title VII, ADEA, ADA); - Employer offers to pay employee "severance" in exchange for employee's promise not to sue employer; - The contract between the employer is called a "release" or "waiver" of employee's causes of action.

What is the protected class under the ADA?

- Employment discrimination is prohibited against a "[1] qualified [2] individual with a disability." - Persons discriminated against because they have a known association or relationship with a disabled individual also are protected.

Reductions in Force

- Most companies experience business difficulties as a result of market decline or economic downturns. - A common first response Is to cut costs, which may include a layoff of employees. - Higher compensated employees may have a greater chance in being included in a company downsizing or a reduction in force ("RIF").

Tramp v. Associated Underwriters, Inc

- Plaintiff sued employer, claiming age discrimination as a result of a company RIF. - District Court granted summary judgment to employer. - Court of Appeals reversed. - Why?: Evidence showed that the employer had written its healthcare carrier and stated that it expected lower premiums since it had gotten rid of its "older, sicker employees."

Differences between the ADEA and Title VII:

- The ADEA does not forbid employers from favoring older employees over younger ones. - Title VII, in contrast, generally recognizes "reverse discrimination" claims. - Note, however, that certain state antidiscrimination laws do recognize reverse age discrimination (not Texas).

A Different ADEA Release for RIF

- The same as an OWBPA waiver for an individual employee except: - Instead of 21 days in which to consider the release, each affected employee is given 45 days in which to consider the agreement; - Also, each employee must be given in writing the eligibility factors of the program, including job titles and ages of people chosen for program and ages of employees not eligible or chosen for the program.

Reeves v. Sanderson Plumbing Products, Inc.

- a company terminated a 57-year old man with 40 years tenure with the company after it ordered an audit of timesheets and discovered significant discrepancies in the supervisor's employee attendance reports. - At trial, the supervisor provided substantial evidence rebutting the company's explanation that he was at fault. - The supervisor also introduced evidence that the director of manufacturing had made several ageist remarks towards him; one comment was that he was "so old [he] must have come over on the Mayflower."

"Individual With A Disability": First Definition

- applies to persons who have substantial, as opposed to minor, impairments. These must be impairments that limit a major life activity such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. Minor, non-chronic conditions of short duration, such as a sprain, infection, or broken limb, generally would not be covered. Has 2 parts: 1. It must be a physical or mental impairment 2. that substantially limits one or more major life activities. An individual does not have a disability unless he or she is substantially limited in one or more major life activities

Dayton Community College v. Oakton Cmty Coll.

- community college formerly hired state university system retirees who were receiving retirement benefits - rules changes, and hiring retiree caused the college to incur monetary penalties - college stopped hiring retirees employer (college prevailed)

OWBPA elements

1. The waiver must be part of a written agreement between the employee and employer that is written in a clear, understandable manner. 2. The waiver must specifically refer to claims arising under the ADEA. 3. The employee must not waive the right to claims that may arise after the date on which the waiver is signed. 4. The employee must be given consideration (something of value) in exchange for the waiver of age discrimination claims in addition to that which the employee is already entitled. 5. The employee must be advised in writing to consult an attorney prior to signing the waiver. 6. The employee must be given at least 21 days in which to consider the proposed waiver. 7. The employee must be given seven days after signing the waiver to revoke it.

2nd Circuit ADEA Prima Facie Case:

1.Plaintiff is a member of the protected class; 2.Plaintiff is qualified for the position; 3.Plaintiff has suffered an adverse employment action; and 4.The circumstances surrounding that action give rise to an inference of age discrimination.

What did the Supreme Court hold that the ADEA banned in O'Connor v. Consolidated Coin Caterers Corp.?

ADEA "does not ban discrimination against employees because they are aged 40 or older; - It bans discrimination against employees because of their age, - but limits the protected class to those who are 40 or older."

Exception to mandatory retirement

An exemption exists in the ADEA to the general limitation against mandatory retirement for some high- level employees. The ADEA permits compulsory retirement for certain executives and individuals in high policymaking positions provided three requirements are met:

NO

Are employers required to lower quality or quantity standards in order to make an accommodation?

Voluntary early retirement

As a general rule, an employer cannot force an employee to retire because of age. An employer cannot give an employee an ultimatum that they either accept retirement under a special early retirement plan or be subjected to an adverse employment action. However, an early retirement program which is purely voluntary and is offered to reduce costs is lawful.

YES

Can an employer consider salary in making lay-off decisions?

maybe

Can you bring disparate impact claim regarding subgroups under the ADEA?

YES

Can you bring disparate impact claim under the ADEA?

Oubre v. Entergy Operations, Inc.

Court ruled that Oubre did not have to give the severance money back The ADEA is a statute and it trumps the common law provision that the keeping of consideration is in fact ratification of the contract

NO

Does the employer in a mixed motives ADEA case have any burden of proof?

Earl v. Nielsen Media Research, Inc

Ninth Circuit ruled that a former media researcher may proceed with her age discrimination claim against the company because she raised a triable issue of pretext by showing that younger employees were treated more leniently for similar policy violations.

Qualified "Individual With A Disability"

Person who... 1.meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and 2.can perform the "essential functions" of the position with or without reasonable accommodation. If the person can perform the essential functions of the job, then he/she is a qualified individual with a disability. If not, then the next question is whether they can perform the essential functions of the job with a reasonable accommodation.

Darby v. Childvine, Inc.,

Plaintiff had a genetic mutation that impaired her normal cell growth - "a genetic mutation that merely predisposes an individual to other conditions, such as cancer" Court held that this was not a disability because her impairment's predisposition to cancer did not constitute a disability. However, Court reversed summary judgment because plaintiff alleged that her mutation is a physical impairment that substantially limits the major life activity of growing cells.

4th element of ADEA Prima Facie Case: Plaintiff Friendly

Plaintiff must prove that he was "disadvantaged" during the RIF in favor of a younger person. This may be established through circumstantial evidence that the plaintiff was treated less favorably than younger employees. Employer's non-discriminatory reason is generally the RIF.

reassigning

Reasonable accommodation also may include _______________ a current employee to a vacant position for which the individual is qualified, if the person becomes disabled and is unable to do the original job.

Huber v. Wal-Mart Stores, Inc.

Said that ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate non-discriminatory policy of the employer to hire the most qualified candidate Employer is not required to provide a disabled employee with an accommodation that is ideal from the employee's perspective, only an accommodation that is reasonable Huber was treated exactly as all other candidates were treated for the Wal-Mart job opening, no worse and no better

Establishing an ADEA claim:

Since the Supreme Court's decision in Gross, most Circuit Courts of Appeals have held that the McDonnell-Douglas test, which establishes the shifts in presumption between the plaintiff and defendant in Title VII discrimination claims, remains the proper framework for evaluating summary-judgment claims in ADEA age discrimination claims.

Smith v. City of Jackson

Supreme Court held that workers aged 40 and older may prove discrimination under the ADEA using a disparate impact theory. - Prior to this holding, an individual could obtain recovery under the ADEA only by using a disparate treatment theory. - ADEA claimants can now recover if it can be shown that an employer used a neutral business practice (not motivated by discriminatory intent) that had an adverse impact on employees age 40 and over. - The claimant need not establish that the employer intended to discriminate.

ADA: Association Discrimination

The ADA also prohibits discrimination based on relationship or association with an individual with a disability. When the ADA was enacted, the AIDS epidemic was both prevalent and accurate information about the disease was unknown. Many employers refused to hire persons who were AIDS-free but whom had a relationship with someone who had the HIV virus.

Mazzeo v. Color Resolutions Int'l, LLC

The ADA now states that "major life activities include but are not limited to sleeping, standing, walking, lifting and bending" and Dr. Roberts stated in his affidavit that Mazzeo's disc herniation problems and resulting pain had existed for years are were serious enough to require surgery - substantially and permanently limited Mazzeo's ability to walk, bend, sleep, and lift more than 10 lbs Ruling: given the new standards and definitions put in place by the ADAAA the evidence provided by Dr. Roberts was enough for Mazzeo to present a prima facie case on his ADA and FCRA disability claims

An ADEA Release

The Older Workers' Benefit Protection Act (OWBPA), an amendment to the ADEA, specifically sets forth the elements which must be contained in a waiver or release if it is to be considered valid under the ADEA. Waivers must include, at a minimum, seven specific elements.

ADEA and Disparate Impact

The appellate courts are in disagreement, however, as to whether disparate impact claims are cognizable when comparing "subgroups" of older employees within the protected class to other employees, also protected by the ADEA. In a 2017 decision, the Third Circuit Court of Appeals concluded that a subgroup of plaintiffs, all over age 50, could proceed with a disparate impact claim based on their employer's allegedly preferential treatment of younger protected employees—between the ages 40 and 50—during a reduction in force. In reaching this determination, the court rejected the holdings of the Second, Sixth, and Eighth Circuit Courts of Appeal. Disparate impact claims based on age are more difficult to prove than such claims under Title VII because of the differences in language between the two laws. Specifically, unlike Title VII, where the "business necessity" test may be used to successfully establish a disparate impact claim if there are other methods or practices available that an employer could use to achieve its goals without creating a disparate impact, the ADEA allows an otherwise prohibited action if it is based on reasonable factors other than age. *This is a more lenient standard, thus making a disparate impact claim under the ADEA harder to establish.*

Supreme Court Holding in Gross v . FBL

The ultimate burden of proof under the ADEA is a stricter standard than Title VII, requiring the plaintiff to prove by a preponderance of the evidence that the employer would not have acted against the employee "but for" the employee's age. In other words, even if there is some evidence that age was a factor in the challenged employment decision, the plaintiff cannot win unless he or she can prove that the employer would not have taken the challenged action but for his or her age.

O'Connor v. Consolidated Coin Caterers Corp.

This case addressed the fourth element of the typical prima facie showing required in an ADEA case Said fourth element was: the circumstances surrounding that action give rise to the inference of discrimination

distraction claim

This provision would protect a person with a disabled spouse from being denied employment because of an employer's assumption that the applicant would use excessive leave to care for the spouse

NO

To prove fourth element of ADEA prima facie case: must the plaintiff prove that his replacement was younger than 40?

knowingly and voluntarily totality-of-the-circumstances test

Under the Title VII, a release will generally be deemed valid if it is __________________________ entered into. Whether it is knowingly and voluntary is based upon a ________________________, consisting of various criteria.

mental impairment

any mental or psychological disorder, such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Common personality traits such as a quick temper are not impairments where such traits are not symptoms of a mental or psychological disorder.

physical impairment

any physiological disorder or condition, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

Covered employers under the ADEA

applies to employers of 20 or more employees - this is more employees than Title VII requires

NO

are employers required to provide personal use items such as glasses or hearing aids?

major life activities

caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Like the prohibitions found in Title VII, the prohibitions against age discrimination under the ADEA...

forbid discrimination in hiring, discharge, promotion, and other terms or conditions of employment.

"Individual With A Disability": Second Definition

includes persons who have a record of such an impairment. It would include, for example, a person with a history (i.e., a record) of cancer that is currently in remission or a person with a history of mental illness. Persons in this category may not currently be disabled under the first definition.

harder for ADEA disparate impact case to be proven

is it easier or harder to win an ADEA disparate impact case or a Title VII disparate impact case?

age proxy theory

some lower courts had held that a presumption of intentional age discrimination could arise from evidence that an employer made an adverse employment decision based upon a factor that correlates with age.

Stray Remarks

standing alone, may not give rise to an inference of age discrimination.

Rowan v. Lockheed Martin Energy

the Sixth Circuit held that the manager's comments regarding a need to lower the average age in the workforce were insufficient to reasonably conclude age discrimination. While recognizing that such statements may establish a prima facie case of discrimination, the court found the company's explanations—that the industry was having a high percentage of its most highly skilled workers retire soon, were "a far cry from being motivated by 'inaccurate and stigmatizing stereotypes.' " However, where a company undertakes to transfer employees subject to a RIF to other departments, it may not favor younger employees over older ones by finding new positions only for the younger workers. Further, an employee may bring a claim for age discrimination in a RIF even if the vast majority of the "younger" workforce has been laid off, if evidence exists that age was a motivating factor in laying off a specific employee.

Essential Functions

the fundamental, not marginal, duties of a job. A job duty is an essential function if any of the following is true: The reason the job exists is to perform that function. Only a few employees can perform the function. The function is so highly specialized that the employer hires people into the position specifically because of their expertise in performing that function.

"Individual With A Disability"

①a person who has a physical or mental impairment that substantially limits one or more major life activities; ②has a record of such an impairment, or ③is regarded as having such an impairment.