Chapter 6

Age Discrimination

The Age Discrimination in Employment Act of 1967 (ADEA) is the federal law that prohibits public- and private-sector employers with 20 or more employees from discriminating against individuals who are 40 years of age and older.

For the most part, the enforcement of the ADEA tracks Title VII.

Age Discrimination in Employment Act (ADEA)

• Age 40 and over

• Applies to all terms and conditions of employment

• Age and age-related characteristics

• Disparate treatment discrimination (intentional)

• Disparate impact discrimination (unintentional)

Scope of Coverage

Recruitment: It is unlawful to include age preferences (such as hiring a candidate between 20 and 30 years of age or a college graduate within the past three years), age limitations (such as avoiding candidates over age 50), or other age related specifications within them.

Terms and Conditions of Employment: The law prohibits employers from discriminating based on age when making decisions about promotions, terminations, compensation, and all other terms and conditions of employment

Disparate Treatment Claim(Intentional Discrimination)

An individual claiming that an employer used age or an age-related factor as the basis for an adverse employment decision can file a disparate treatment claim for intentional discrimination.

Disparate treatment claim: employment discrimination claim alleging an employer engaged in intentional discrimination

Prima Facie Case

• The prima facie case is the bare minimum that a plaintiff must present in a lawsuit.

• For a discriminatory hiring claim, a prima facie case would include evidence that:• Plaintiff belongs to a protected class • Plaintiff has applied and was qualified for a job

for which the employer was seeking applicants; • Plaintiff was rejected for the position despite his

or her qualifications; and • The position remained open after plaintiff’s

rejection, and the employer continued to seek applications from other people with similar qualifications to the plaintiff.

Direct and Circumstantial Evidence may Support a Claim under the ADEA.

Employer Defenses to Discriminatory Conduct

In response to the presentation of direct or circumstantial evidence of age discrimination, the burden of proof shifts to the employer to defend its employment decision.

1. Legitimate, nondiscriminatory reason2. Bona fide seniority system3. Bona fide occupational qualification (BFOQ)

Legitimate, Nondiscriminatory ReasonEmployers have great latitude in explaining why an adverse employment decision was made, and to illustrate that age or an age-related factor was not the motivating factor.

Some exception might relate to:• Education• Prior experience,• Other measures of the quality or quantity of an

individual’s work.

Employers who can illustrate that they uniformly apply performance standards and terminate employees who do not meet those standards would not be subject to liability under the ADEA

Legitimate Nondiscriminatory Reasons Include any Reasonable Factor Other than Age (RFOA)

An employer can defend a claim by presenting a legitimate nondiscriminatory reason for an adverse decision, which includes a reasonable factor other than age (RFOA).

RFOA: employer's basis for the imposition of an adverse decision on individuals 40 years of age and older that is unrelated to age and therefore not a violation of the ADEA

Bona Fide Seniority System

The ADEA permits the use of bona fide seniority systems, which provide benefits linked to years of service. The ADEA does

not consider them discriminatory providedthere is no discriminatory intent.

Seniority is a measure of an employee’s years of service with an employer, and a bona fide seniority system uses this length of service to determine the appropriate benefit level for the employee.

Bona Fide Occupational Qualification (BFOQ)

• A BFOQ is a statutory exception to the prohibition against age discrimination.

• This defense is available to an employer who can show that age is a BFOQ, meaning the consideration of age is ‘‘reasonably necessary to the normal operation of the particular business.”

Pretext

Once an employer presents a defense, the burden shifts to the individual to show that the defense is a pretext.

A pretext is a justification for making an adverse employment decision, which is a cover-up for a true discriminatory motivation.

Disparate Impact Claim(Unintentional Discrimination)

An individual can also file a disparate impact claim under the ADEA if the discrimination is unintentional.

A disparate impact claim is an employment discrimination claim based on a policy or practice that is neutral on its face but results in a disproportionate impact on members of a protected class.

Benefits

• Employees must generally be provided with the same benefits regardless of their age.

• There is an equal-cost defense which may permit an employer to offer reduced benefits.

Bona Fide Employee Retirement Plans

Mandatory Retirement Plans

Voluntary Early Retirement Incentives

Mandatory Retirement Plans

Mandatory retirement plans are generally prohibited because they are discriminatory based on age.

There are some limited exceptions for employees working in law enforcement, as firefighters, and for some highly compensated executives and other policy makers but those exceptions are closely scrutinized.

Voluntary Early Retirement Incentives

Voluntary early retirement plans are generally permissible and not necessarily evidence of discriminatory conduct but such plans are regulated and closely scrutinized because of the inherent link between retirement and the age of an employee.

Judicial Considerations to Ensure Voluntariness

Courts will consider whether:

(1) employees are given sufficient time to consider their options;

(2) employees are provided with sufficient information to make informed decisions;

(3) employees were coerced into making their decisions;

(4) employees would be subject to adverse employment consequences for declining the offer; and

(5) employees had the opportunity to receive independent advice as to the appropriate decision.

Congressional Effort to Ensure Voluntariness

• Congress amended the ADEA with the Older Workers Benefit Protection Act (OWBPA) to ensure voluntariness.

• OWBPA is designed to provide older employees with sufficient information to ensure that the agreement represents a knowing and voluntary waiver of their rights

Older Workers Benefit Protection Act (OWBPA)

• “Knowing and voluntary” standard still applies.

• Under the OWBPA, in order for a release to be a valid waiver of ADEA claims, a release must

• be in writing and be understandable;

• specifically reference the Age Discrimination in Employment Act (ADEA);

• waive only past claims and have no impact on claims that might arise in the future; be in exchange for valuable consideration;

• include a written provision suggesting that the affected employee consult an attorney prior to signing the waiver;

• provide the employee with at least 21 days to review and consider the agreement; and

• provide the employee with a seven-day period after execution of the agreement during which the individual retains the right to revoke it