Download Age Discrimination - Clayton State University

Age Discrimination
50 is the new 30!
AGE
Cher at 64!
Myths About Older
Workers and Age Discrimination
1. Older workers are less able to perform in
most positions than younger workers, even
given their experience
2. In a reduction in force caused by economic
reasons, employers should always
terminate the older workers, since they are
usually the highest paid
3.
4.
5.
If most people in a certain age group have a common
weakness, it can be generalized that all in that group
have the weakness, and age can be used as a job
qualification
If an employee is discriminated against because of
youth, the employee has a claim under the Age
Discrimination
Employees must retire at age 65 in the United States
AGE DISCRIMINATION
QUESTIONS
• 1. How are ADEA and Title VII similar
and how are they different?
• 2. What must an employer prove to
establish age as a BFOQ?
• 3. What must be true in order for a
waiver of rights to be effective under
the OWBPA?
• 4. What issues does a reduction in
force raise?
• 5. Is discrimination against an older
worker permissible if it is due to
increased costs?
Statutory Basis
• Section 4(a) of the Age Discrimination in
Employment Act prohibits discrimination in
employment based on age
Regulation
• Age Discrimination in Employment Act applies to
people who are at least 40 years old
• Applies to public and private employers, unions,
employment agencies and most foreign
companies in the U.S.
• ADEA more lenient toward employers than Title
VII
Smith v. City of Jackson, Mississippi
125 S. Ct. 1536, 2005 U.S.LEXIS
2931 (2005)
•Civil Rights Act of 1991 amended
Title VII regarding disparate-impact.
•The amendments did not apply to
ADEA.
•Discrimination against age prohibited
unless “the differentiation is based on
reasonable factors other than age.”
•The scope of disparate-impact
liability is narrower than under Title
VII.
Gross v. FBL Financial Services,
129 S. Ct. 2343 (2009)
•Age must be the primary reason,
rather than a “motivating factor” for
the employment action.
•This is a different standard from all
other forms of discrimination.
•There is a bill pending before the
House to apply the same standard as
is used with the other federal
discrimination laws.
In March 2012, the EEOC released its Final Rule on
Disparate Impact and “Reasonable Factors Other Than
Age” Under the Age Discrimination in Employment Act of
1967
•Effective April 30, 2012
•List of considerations relevant to assessing
reasonableness:
•The extent to which the factor is related to the
employer’s stated business purpose;
•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;
•The extent to which the employer limited
supervisors’ 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;
•The extent to which the employer assessed
the adverse impact of its employment
practice on older workers; and
•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.
Prima Facie Case for Disparate
Treatment due to Age
– The employee’s prima facie case for disparate
treatment
• Member of protected class
• Adverse employment action
• Qualified for position
• Dissimilar treatment
-Employer’s defenses
•BFOQ
•Reasonable factor other than
age
•Economic concerns
•Benefit plans and seniority
systems
•“Voluntariness” of plan
•“Same factor” defense
•The Older Workers’ Benefit
Protection Act of 1990
•Employee Retirement Income
Security Act
•Distinctions among benefit plans
– Employee’s Response: Proof of Pretext
• Must show that employer’s defense is
not the true reason for the action
BFOQ
• The age limit is reasonably necessary to the
essence of the employer's business; and either
• all or substantially all of the individuals over that
age are unable to perform the job's
requirements adequately; or
• Some of the individuals over that age possess a
disqualifying trait that cannot be ascertained
except by reference to age.
• Remedies
– Usually front pay or back pay
– Compensation for pain and suffering not available
under ADEA
– Willful violations may also bring liquidated
damages in an amount equal to unpaid wage
liability
Unique Problems Associated With a
Reduction in Force
• Reduction in force occurs when a company
downsizes operations
• Terminations should not be arbitrary
• Employer protected in a bona fide RIF
• Fourth aspect of prima facie case is not used
• The Age Discrimination in Employment
Act1 (ADEA), as amended by the Older Workers
Benefit Protection Act (OWBPA), requires very
specific provisions, if waivers of ADEA claims are to
be held valid:
1) Waivers must be plainly worded, written
agreements that specifically reference the
ADEA and suggest consultation with a lawyer
prior to acceptance;
2) Legal consideration must be provided for
acceptance.
3) Employees must be given at least 21 days to
consider waivers (45 days for group early
retirement offers); and
4) Waiver agreements do not become final—and
can be revoked by the employee - until 7 days
after acceptance
• Only claims that arose prior to the date of the
waiver can be waived.
• If these requirements are not met, the waiver is
unenforceable and any severance payments or
other consideration provided to support the
agreement are not recoverable by the Employer.
• See General Dynamics Land Systems, Inc.
v. Cline, 124 S.Ct. 1236, 157 L.Ed.2d 1094
(2004) .
Management
Considerations
• Scrutinize any job requirement based on age
• Review all termination decisions carefully
• Review recruiting literature to remove agebased classifications
• Keep documentation for terminations
• Be sure any waivers are in compliance with
OWBPA
What Would You Do?
•Your father, in whose business you have been
working since you graduated from college, has
passed away. Ownership and management of
the company are now yours. Your father founded
the firm and built it largely based on his personal
relationships with his employees. One of these
employees, Mel, has just asked whether you
knew about your father’s promise to him for the
sacrifice he made. Ten years ago, at your
father’s urging, he turned down an offer from
another firm for substantially more money and a
higher position in exchange for the promise of
lifetime employment. It sounds just like the sort
of thing your father would do. Mel has been in
sales with the firm for 40 years, but his
performance has slipped and he was one of the
people you had planned to let go. What would
you do?