# Presentation: 017601

## Sprint-ing to UnderstandAge Discrimination

- Raymond Peeler
- (raymond.peeler@eeoc.gov)
- Senior Attorney-Advisor
- Office of Legal Counsel
- U.S. Equal Employment Opportunity Commission

## General Prohibition:Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et.seq.

- Prohibits discrimination **“Because of Age”**
- against people **at least 40 years old.**
- Supreme Court OK’s favoring older person. *General Dynamics Land Systems, Inc. v. Cline*, 540 U.S. 581 (2004).

## Types of Prohibited Actions

- Affecting a “compensation, terms, conditions, or privileges of employment”
- Hiring, firing, raises
- Appraisals, transfers
- Employee benefits
- Harassment
- Limits, segregates, or classifies to deprive of employment opportunities or otherwise adversely affects status as employee.

## Types of Prohibited ActivitiesAdvertisements

- It is unlawful to advertise a preference for younger applicants or employees, unless an exception to the ADEA applies
- Employers may advertise a preference for older workers.

## Proxies for Age

- Factors that correlate with age, but are not directly dependent on age, do not prove age discrimination without more.  However,
- If the factor relied upon is itself based on age, then it is a “proxy” for age.

## Proxies for AgeExamples

- Proxy for age in violation of ADEA:
- Firing employee to prevent eligibility for early retirement at age 55.
- Correlated with age, but not a proxy:
- Years of Service/Seniority
- Salary
- But be aware of “disparate impact.”

## Disparate Impact and Age

- Neutral policy or practice that has an adverse impact against older workers collectively _may_ be discriminatory.
- Unlike Title VII claims:
- Employee must isolate and identify a specific practice.
- Employers are not liable if have “reasonable factor other than age” to justify the practice.

## Specific ADEA Issues:Age in the Application Process

- Employers and employment agencies cannot advertise preference for younger employees.
- It is not unlawful to ask for age-defining info., such as age, high school grad. date, etc., **but:**
- Will be closely scrutinized if charge filed.
- Should inform applicants that not using information for unlawful reasons based on age.
- Tear-off sheets are preferable or wait to ask until post-offer.

## Specific ADEA Issues: Retirement

- In most circumstances, employers may not *require* retirement based on age.
- Exceptions:
- Bona-Fide Executives – high policy makers may be subject to involuntary retirement at 65.
- Bona Fide Occupational Qualification (BFOQ) (VERY RARE)

## Exemptions and Defenses to ADEA Liability

- BFOQ age limit must be:
- Reasonably necessary to the job’s “essence;” and
- Those excluded from job by limit are in fact disqualified; or
- Disqualifying trait cannot be ascertained without reference to age.
- Bona Fide Seniority Systems
- Length of service must be primary criterion
- Generally not bona fide if those with longer service receive fewer rights/benefits.

## Employee Benefits

- Equal Benefit/Equal Cost – reductions in benefits, such as health or life insurance, must be justified by increased cost to the employer.
- Employer has obligation to show that benefit reduction meets this test.

## State and Local Government:Firefighters & Law Enforcement

- Maximum hiring age OK if:
- In state or local law in effect on or prior to 3/3/83
- Age not lowered between 3/4/83 and 9/30/96
- Enacted in state or local law after 9/30/96
- Mandatory Retirement Age OK if:
- In state or local law in effect on or prior to 3/3/83
- Age not lowered between 3/4/83 and 9/30/96
- Enacted in state or local law after 9/30/96, provided that retirement age is not less than 55 years old
- Provided no “subterfuge to evade” purpose

## State and Local Government:Elected & Appointed Officials

- Elected Officials in public office, and their “personal staff,” are not protected by the ADEA.
- Relevant question for staff coverage: Did the elected official personally selected him/her for the job?
- Appointees at the policy-making level or “immediate advisor(s) with respect to the exercise of the constitutional or legal powers of the office” also are not covered.
- Government officials covered by civil service laws ARE covered by the ADEA.

## State and Local Government: Immunity From ADEA Suits

- State and Local governments retain their immunity from suit for ADEA claims that are filed by **private individuals**
**BUT**
- The federal government may pursue ADEA claims against state and local governments.
*Kimel v. Florida Bd. of Regents*, 528 U.S. 62 (2000)

## Waiver of ADEA Rights:Older Workers Benefit Protection Act (OWBPA)

- Must be clearly written;
- Cannot include future claims;
- Must specifically refer to rights or claims under the ADEA;
- Must provide some extra consideration in exchange for waiver;
- Must advise in writing to consult with an attorney prior to signing; and
- Must provide 21 days to consider prior to signing & 7 days to revoke agreement after signing.

## Waiver of ADEA Rights:OWBPA & Reductions In Force

- Also must inform employees of:
- Job titles and ages of those eligible/selected for RIF;
- Ages of all people in same job classification or organizational unit not eligible/selected for RIF; AND
- Criteria for RIF selections
- In such group waivers, must give 45 days to consider waiver & 7 days to revoke after signing.

## Proving Age Discrimination:Age-Based Statements

- Who made statement?
- Decisionmaker?
- Someone with influence over decisionmaker?
- In what context?
- When?  Close in time to adverse action?
- How often were such statements made?  Does it reveal an ageist work environment?
- Beware categorizing statements as “stray remarks.”

## Proving Age Discrimination:Reductions in Force

- Duties assumed by younger employee?
- What are ages of all those considered for RIF vs. those who fired?
- What motivated the RIF?  Does the RIF fulfill this motivation?
- What are RIF criteria?  Are they age-neutral?  Are they consistently applied?
- Evidence of age bias outside the decisional group relevant? (*Mendelsohn v. Sprint/United Mgmt. Co.* – Being Considered by Supreme Ct.)

## Retaliation

- It is unlawful to discriminate against someone who:
**opposed any practice** made unlawful by the ADEA, or
**participated in any manner** in an investigation, proceeding, or hearing under [the ADEA].
- Any act that “well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination” is actionable.”

## Example

- Janice’s supervisor frequently referred to her as “prehistoric” and “the walking fossil.”  When he  curtailed her duties because she “couldn’t keep up,” she filed a charge w/ EEOC.  Soon thereafter, she was excluded from weekly training lunches available to all other employees to remain updated on the latest business practices.
*Analyze Janice’s potential retaliation claim.*

## Filing a Claim under ADEA:Federal Employees

**Administrative Process:** Contact EEO Office **at your agency** with intent to begin EEO Counseling **within 45 days** of the alleged discriminatory event.
- 	**OR**
**Civil Action:**  Notify EEOC of intent to file civil action.  Can go to court if not resolved by EEOC after 30 days.

## Filing a Charge under ADEA:Contractors, State/Local employer, or Private Employers

- File charge with appropriate EEOC Office w/i **180 days** (if no state protections) **or 300 days** (if state also has admin. process)
**Civil Action** – must wait 60 days after date charge filed.  Unlike Title VII, do not need “Right to Sue” letter from EEOC.

## Sprint-ing to UnderstandAge Discrimination

**Any Questions?**
- Thank you for your time and attention.