# Presentation: 171272

## Investigating Age Discrimination Complaints

- 16th Annual National Equal Opportunity Conference
- US Department of Labor
- Washington, DC
- August 25, 2005

## Age Discrimination Act of 1975

- Built on the foundation of Title VI
- HEW issued general government wide regulations in 1979
- Set standards for other federal agencies

## What It Does

- Prohibits discrimination on the basis of age
- Protects persons of all ages
- General provisions are like Title VI
- Tied to the presence of federal funding

## Employment

- General covered by Age Discrimination in Employment Act of 1967
- Enforced by EEOC  (40-70)
- Comparable to Title VII of Civil Rights Act
- 1975 Act does apply to programs where purpose of federal funding is employment

## Exceptions 

- age distinctions in other laws
- federal, state, local  (See Appendix A)
- That:
- Provides age based benefits,
- Establishes participation criteria based on age
-  or targets groups in age related terms
- Employment practices of employer, agency, labor organization, joint LM apprentice program

## More Exemptions

- permits certain kinds of different treatment
- in order to achieve a statutory objective
- maintain normal operation
- How Do You Determine???

## The (dreaded) Four Part Test

- Age is used as a measure of one or more characteristics
- Characteristic must be measured for program to continue
- Characteristic can be reasonably measured by the use of age
- Impractical to measure directly on individual basis

## Examples (statutory objective)

- Public Health Service Act
- Goal: Reduce communicable disease through vaccinations
- Where are infectious/communicable diseases most prevalent?
- Have to determine target groups to immunize
- Medical Data shows ages 1-15 most vulnerable
- Assessing individuals not practical vs. targeted immunization efforts

## Example (normal operation)

- Children’s Hospital of Philadelphia
- Established to provide pediatric medical care
- Medical specialties
- Equipment
- Nursing Home
- Skilled Care (age specific?)
- Administrative ease

## Exceptions (continued)

- Age distinctions in DOL regulations are presumed to be necessary
- policies/practices based on reasonable factors other than age
- special benefit programs

## Investigating Age Discrimination Cases

- Step 1:
-  Refer complete complaints to Federal Mediation Service for 60 day mediation efforts
- Step 2:
- Not much different than a Title VI case
- Disparate Treatment
- Disparate Impact

## Disparate Treatment Cases

- Establish a *prima facie* case
- Person in a protected class?
- Qualified for the service
- Did not receive service
- Others similarly situated receive services or benefits

## Next Steps

- Afford covered entity opportunity to articulate a legitimate non discriminatory reason for its action(s)
- Age restriction under federal,state,local law?
- DOL reg?
- Meets four part test?
- Pretextual?

## Disparate Impact

- Prima Facie Case
- Statistical and comparative evidence
- What policy or procedure is causing the disparity?
- Articulate a Program Necessity Reason
- Based on reasonable factors other than age?

## Some Statistics

- HHS Case Data
- Current: 21 age cases of 1922 open civil rights cases (< 1%)
- HHS has closed/resolved 4476 civil rights cases since October 1, 2003
- 66 age cases (1.5%)

## Some Resources

- _[http://www.](http://www.hhs.gov/ocr/age.html)__[hhs](http://www.hhs.gov/ocr/age.html)__[.](http://www.hhs.gov/ocr/age.html)__[gov](http://www.hhs.gov/ocr/age.html)__[/](http://www.hhs.gov/ocr/age.html)__[ocr](http://www.hhs.gov/ocr/age.html)__[/age.html](http://www.hhs.gov/ocr/age.html)_
- Department of Health and Human Services OCR Website
- _[http://www.ed.gov/about/offices/list/ocr/qa-age.html](http://www.ed.gov/about/offices/list/ocr/qa-age.html)_
- Department of Education OCR Website