1. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Prevention – Supervisor Briefing

2. © Reed Business Information, a division of Reed Elsevier Inc. Question During an interview, is an employer permitted to ask an applicant how long he or she was at their previous position?

3. © Reed Business Information, a division of Reed Elsevier Inc. Answer Yes. It is permissible to ask a job candidate how long they were at the position they held previously because this does not show any bias based on age and seeks to gather information regarding qualifications and skills.

4. © Reed Business Information, a division of Reed Elsevier Inc. Objectives of This Briefing This supervisor briefing examines the law and best practices for preventing age discrimination in the workplace. It covers the following topics: 1.Legal Background 2.Age Discrimination Claims 3.Defending an Age Discrimination Claim

5. © Reed Business Information, a division of Reed Elsevier Inc. Objectives of This Briefing (con’t.) 4.Avoiding Age Discrimination 5.Implementing an Age Bias Free Hiring Process 6.Maintaining an Age Bias Free Workplace 7.Minimizing Age Discrimination When Employees Leave the Company

6. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background Age Discrimination in Employment Act (ADEA) Applies to all employers with 20 employees or more and applies to all employees and applicants over the age of 40.

7. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) The ADEA prohibits an employer from treating an employee or an applicant who is 40 years or older differently based on their age.

8. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) Specifically the ADEA prohibits: Discrimination based on age during any stage of the employment process; Discriminatory job advertisements for available positions. Advertisements can only include an age limit if it is a bona fide occupational qualification based on business necessity;

9. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) Harassment and stereotyping of older workers; Forcing employees to take early retirement; Retaliation against those who file, testify or participate in an ADEA claim against the employer; and Reduction or denial health or life insurance benefits for older employees.

10. © Reed Business Information, a division of Reed Elsevier Inc. Did You Know? Only individuals over 40 are protected by the ADEA. An employer is not prohibited from rejecting an applicant or discriminating against an employee under 40 based on the belief that the individual is too young for the position.

11. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) Older Workers Benefit Protection Act (OWBPA) An amendment to the ADEA specifically prohibiting discrimination against older workers in providing benefits. Unlawful for an employer to use an employee’s age as basis for discrimination in benefits and retirement.

12. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) An employer is allowed to reduce benefits based on age only if the cost of providing reduced benefits to older workers is the same as the cost of providing benefits to younger workers.

13. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) State and Municipal Laws Almost all of the states and cities have laws against age discrimination, harassment and retaliation. Exact age differs based on the state. ADEA - employers with 20 employees but state thresholds lower.

14. © Reed Business Information, a division of Reed Elsevier Inc. Legal Background (con’t.) Example: In New York, the prohibition on age discrimination applies to employers with 4 or more employees. On the other hand, in New Jersey, there is no minimum number of employees that is required.

15. © Reed Business Information, a division of Reed Elsevier Inc. Tip Multistate employers should be aware of not only the ADEA’s requirements, but also the requirements of the states and municipalities in which they operate.

16. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Claims Disparate Impact An applicant or employee may establish a disparate impact discrimination claim if he or she is able to show that a seemingly neutral workplace rule, requirement, test or selection practice has an adverse effect on individuals over the age of 40.

17. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Claims (con’t.) The following may constitute examples of disparate impact because older workers may be negatively affected: Policies requiring company to lay off higher paid employees; Policies requiring supervisors to identify the least productive employees; and Policies requiring workers to be technologically savvy.

18. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Claims (con’t.) Disparate Treatment An applicant or employee may establish a disparate treatment age discrimination claim by showing that he or she was subject to an intentional adverse employment action, e.g., failure to hire, transfer, demotion, discipline, termination.

19. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Claims (con’t.) This adverse action may be established by direct evidence or indirect evidence. An applicant or employee may not rely solely on the fact that he or she was passed over for or replaced by a younger individual although this can add support to an ADEA claim.

20. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Claims (con’t.) Examples of disparate treatment age discrimination include: Passing over an older worker for a promotion in favor of a younger worker; Providing a negative performance evaluation that lacks factual evidence; Disciplining older workers and not disciplining younger workers for the same misconduct;

21. © Reed Business Information, a division of Reed Elsevier Inc. Age Discrimination Claims (con’t.) Denying a benefit to an older worker; Making age-related comments such as “we need new blood”, “is this how they did it back in your day?”; Giving unfavorable assignments to an older worker; or Transferring duties and responsibilities from older workers to younger workers.

22. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim An employer may defend either a disparate impact or a disparate treatment age discrimination claim if an employment decision was made based on a reasonable factor other than age and there was a legitimate nondiscriminatory business reason for the employer’s action.

23. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) For example, an employer retains the power to terminate or discipline an employee for cause such as poor job performance misconduct or violation of workplace rules.

24. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) Economic considerations and lack of skill may also be considered reasonable factors other than age such as when an employee’s salary is reduced because of the employer’s business economic situation.

25. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) With respect to disparate impact claims, under the Equal Employment Opportunity Commission’s rules, an employer must show that it has a stated and legitimate business purpose for any workplace policy or practice that adversely affects older employees.

26. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) The employer must demonstrate that it considered and sought to reduce the impact of the workplace policy or practice on older workers. Also an employer must now individually consider the facts and circumstances that surround each situation.

27. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) The EEOC provides a non-exhaustive list of considerations an employer must assess to determine whether a workplace policy or practice is based on a reasonable factor other than age.

28. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) The extent to which the factor is related to the employer's stated business purpose – the business reason presented by the employer for adopting or implementing the questioned workplace policy. The business purpose does not need to be written.

29. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) The extent to which the employer defined the factor accurately and applied the factor fairly, including the extent to which managers and supervisors were given guidance and training about how to apply the factor and avoid discrimination. The extent to which the employer limited supervisor discretion to engage in a subjective assessment of employees.

30. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) The extent to which the employer assessed the adverse impact of its employment practice on older worker.

31. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) The degree of harm to individuals within the protected age group and the extent to which the employer took steps to reduce the harm in light of the burden of undertaking such steps.

32. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) An employer is not required to use the least discriminatory method to achieve its stated business purpose as long as the employer can show that it took affirmative steps to reduce harm to older workers without sacrificing cost or effectiveness.

33. © Reed Business Information, a division of Reed Elsevier Inc. Defending an Age Discrimination Claim (con’t.) To establish the defense, an employer is not required to show that it used each of the considerations. The EEOC provides that the defense could be established even if one or more of the considerations cannot be proven.

34. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination Policy against Age Discrimination It is critical for an employer to maintain a comprehensive equal employment opportunity and discrimination policy prohibiting age discrimination, harassment and retaliation. Employment decisions should be based on fair and unbiased factors and not an individual’s age.

35. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) The policy should state: The reporting process; The investigation process; Disciplinary consequences and measures; and Assurances against retaliation.

36. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) Policy Distribution and Training An employer should make sure that the policy addressing age discrimination is distributed to all employees and placed in an employee handbook or posted on the employer’s intranet.

37. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) The employer should make sure that all employees and supervisors acknowledge receipt of the policy and agree to abide by its terms. New employees should be required to sign the acknowledgment as part of their initial set of HR paperwork upon commencing employment.

38. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) All signed acknowledgements should be placed in the employee's personnel file. An employer should be sure to incorporate age discrimination into equal employment opportunity and diversity training sessions so that all employees are aware of what it is and how to identify instances of age discrimination and harassment.

39. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) Address Age Discrimination Complaints An employer should have a well- established system to address age discrimination complaints.

40. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) The comprehensive complaint procedure should cover the following: Who in the employer's organization will handle discrimination complaint; In what form complaints should be submitted (i.e., written vs. verbal);

41. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) The time frame in which the complaint will be addressed; and How the issue will be handled between the complainant and alleged wrongdoer - including disclosures, face-to-face discussions, and more.

42. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) A thorough complaint procedure would include the following steps: Interviewing the complaining employee(s) and documenting all allegations; Interviewing the alleged wrongdoer(s) and documenting the responses to the allegations;

43. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) A factual investigation in which documentary evidence (i.e., emails, memorandum, notes) is gathered and any witnesses are interviewed; and The employer’s responsibilities in the event it is determined that a policy violation occurred (or did not occur).

44. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) No matter the outcome, careful monitoring of the employee is a good idea to ensure no further inappropriate or discriminatory behavior occurs.

45. © Reed Business Information, a division of Reed Elsevier Inc. Avoiding Age Discrimination (con’t.) A formal complaint procedure is essential to maintaining a workplace in which employees are aware of what actions to take in the event of discrimination, the details on how allegations of discrimination will be handled, and the disciplinary consequences for prohibited conduct.

46. © Reed Business Information, a division of Reed Elsevier Inc. Tip It is essential to keep a thorough record of any age discrimination complaints as this may be relied on in later litigation.

47. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process All job advertisements, application forms and interviews must be free from any questions or language that could infer a preference for a particular age group.

48. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Although an employer may have a need to know this information, it can be provided after the individual has discussed his or her skills and qualifications for the position and a conditional job offer has been extended.

49. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Job Advertisements Job advertisements and job descriptions should be reviewed for any potential disparate impact on applicants 40 years of age or older and amended accordingly.

50. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Job advertisements should be written in a way that will not deter older applicants from submitting an application. Further, job advertisements should be placed where they will reach all potential applicants and all channels utilized to advertise open positions.

51. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Examples of language that should not be included in job advertisements include: Any direct reference to age, e.g.,18-25 only; Indirect language, such as college student, recent graduate, or an individual who is young and energetic;

52. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Any listing of preferred graduation years or preferred years of experience; and Any request for a “digital native” or individuals with advanced computer skills adept at digital technology because this may likely leave out individuals over 40.

53. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) An employer may be able to later ask a job candidate to provide proof of credentials, skills, and qualifications only after a conditional job offers has been extended. However, an employer should be cautious about requesting credentials which would suggest age discrimination.

54. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Application Forms An employer should be sure to remove such questions as date of birth and date of high school graduation as this may be viewed as discriminatory.

55. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Interviews Supervisors, managers and those who have the responsibility of interviewing and screening potential candidates must avoid asking questions that could have an unfair or disparate impact on older candidates.

56. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Interview questions should be geared toward a candidate's ability to meet the specific qualifications required by the job description and interviewers should not discuss irrelevant matters that do not directly impact the job.

57. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) The focus should be on merit, skills, ability and qualifications and directly related to job duties and responsibilities. Individuals of mixed ages should conduct the interviewing during the selection process.

58. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Supervisors and managers should avoid basing hiring decisions on prejudice or stereotypes. All job applicants should be evaluated using the same criteria.

59. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Examples of impermissible questions include: How old are you? How much longer do you plan to work before you retire? If we hired you, how long would you stay with us?

60. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) How would you feel about working for someone younger than you? When did you graduate high school/college/graduate school? How many years of experience do you have? Don’t you think you are overqualified for this position?

61. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) While an employer is entitled to know information such as educational credentials, it is best practice to avoid such questions because it unlawful to base a hiring decisions on an individual’s response.

62. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) An interviewer may be able to ask the following questions which are not discriminatory: How long were you at the position you held immediately prior to this one? Why did you leave or why are you interested in leaving your previous/current position?

63. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) An interviewer may be able to ask the following questions which are not discriminatory: How long were you at the position you held immediately prior to this one? Why did you leave or why are you interested in leaving your previous/current position?

64. © Reed Business Information, a division of Reed Elsevier Inc. Tip An employer should be sure to tie any interview questions to the essential job qualifications. A good way to do this is to tell the candidate the minimum number of years of experience and commitment that is required for the job and ask the individual if he or she would be able to meet this requirement.

65. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Preemployment Tests An employer should avoid using any pre- employment test that will exclude a disproportionate number of otherwise qualified candidates over 40 (or another age group depending on the state law) and have a discriminatory disparate impact on older workers as this would violate the ADEA and state/municipal law.

66. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Such tests may include: Vision tests; Cognitive tests; or Medical tests in the pre-offer stage before a conditional job offer is extended.

67. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) If an employer has a legitimate nondiscriminatory reason for providing the test, the test must be job related and have same the requirements for every candidate for position in question.

68. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Third Party Recruiters An employer should be careful using third party recruiters who advertise specific age criteria or a preference for younger workers because the client company may also be potentially liable for age discrimination.

69. © Reed Business Information, a division of Reed Elsevier Inc. Implementing an Age Bias-Free Hiring Process (con’t.) Therefore, an employer should make sure a third party recruiter does not: Express a preference for young workers; Place age based criterion on interview forms; or Refuse to interview older workers.

70. © Reed Business Information, a division of Reed Elsevier Inc. Maintaining an Age Bias Free Workplace In order to maintain an age bias free workplace, a supervisor may want to consider the following dos and don’ts.

71. © Reed Business Information, a division of Reed Elsevier Inc. Maintaining an Age Bias Free Workplace (con’t.) DODON’T Pair older and younger workers together so they can learn from each other. Offer flexible working arrangements only to younger workers because of family obligations. Older workers may have needs as well. Provide professional development for all employees Discipline an older worker more severely than a younger one for the same offense.

72. © Reed Business Information, a division of Reed Elsevier Inc. Maintaining an Age Bias Free Workplace (con’t.) DODON’T Focus on skills, ability, merit, qualifications and performance when assessing individuals and evaluating opportunities for training, promotions and raises. Limit the ability and opportunity for older employees to expand their current skills or learn new ones because you assume that they will not have the need, ability or desire to learn something new. Provide employees with frequent performance evaluations so employees know how they are doing. Lower production standards or qualifications for older workers by assuming they cannot keep pace with younger workers.

73. © Reed Business Information, a division of Reed Elsevier Inc. Maintaining an Age Bias Free Workplace (con’t.) DODON’T Encourage mentoring and passing on of knowledge, skills and expertise. Stereotype based on age and use words that portray a preference for youth such as energy, initiative, commitment, drive, enthusiasm, excitement, flexibility, imitation, intently, or the ability to learn new processes and technologies. Make sure to carefully assess a worker’s actual condition and abilities. Make age-related comments that imply bias such as we need fresh ideas, some people have been here too long, you have been here forever or comment that an older worker has slowed down or lost the spark.

74. © Reed Business Information, a division of Reed Elsevier Inc. Maintaining an Age Bias Free Workplace (con’t.) DODON’T Avoid using words in performance evaluations that imply discrimination based on age such as energetic, youthful, vibrant, and enthusiastic. Assume that an older worker can no longer perform a job or that their physical condition may limit them. Look at actual job descriptions and requirements to make sure an individual is meeting the employer’s expectations. Make sure to document all employment decisions thoroughly and show that they are based on legitimate nondiscriminatory reasons. Replace an older worker with a younger worker or transfer any job duties and responsibilities (unless there is a legitimate business reason other than age). Be careful about off-hand teasing, jokes, and cartoons etc. that discriminate based on age. Emphasize respect and tolerance for all workers regardless of age.

75. © Reed Business Information, a division of Reed Elsevier Inc. Maintaining an Age Bias Free Workplace (con’t.) Bona Fide Employee Benefit Plans Employer may observe bona fide employee benefit plan terms (retirement, pension, insurance) with age-based distinctions if differences cost justified. Employer must pay the same for older/younger employees.

76. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company Retirement ADEA prohibits employers from requiring retirement at a specific age. However, some job have mandatory retirement - airline pilots, air traffic controllers, public safety positions (police/firefighter), state court judges.

77. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) Sometimes, age may be a legitimate job qualification that is reasonably necessary to the operations of an employer’s business.

78. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) Employers also may require upper level managers and those in high policy making positions to retire at age 65 if such individuals have been employed in that position at least two years prior to retirement and are entitled to immediately receive annual retirement benefits that are worth at least $44,000 per year or more.

79. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) To determine whether an individual will qualify as an executive or high policy maker, some factors to take into consideration are: The individual's job function and day to day activities performed; The individual's involvement in hiring and firing decisions; and The amount of discretion that the individual has in his or her work.

80. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) An employer may offer an employee early retirement as long as it does not violate the ADEA and the employer follows certain requirements in providing a release to the affected employee.

81. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) Reductions in Force A reduction in force should be a last resort. First, an employer should consider whether it can take any alternative steps such as:

82. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) Furloughs and a reduction in work; Voluntary leaves of absence; Temporary plant shut down; Work sharing; Hiring freezes; and Terminating select employees for legitimate reasons, e.g., absenteeism, performance issues.

83. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) If an employer must conduct a reduction in force, an employer should make sure to develop age bias-free criteria and consistently apply such criteria when making decisions of who to let go.

84. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) If a reduction in force does have a disparate impact on older workers, an employer should be prepared to defend its decision by that the reduction in force criteria was legitimate and nondiscriminatory.

85. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) An employer should also be prepared to back up the decision with an employee’s most recent performance evaluations which could provide additional evidence as to why a particular employee was chosen.

86. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) Severance Packages and Releases A supervisor should make sure that any severance and release provided to an employee in the context of a termination, early retirement or reduction in force is valid under the ADEA and the OWPBA.

87. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) An employee is permitted to waive his or her rights to sue under the ADEA at the employer’s request in exchange for a severance package. However, the ADEA sets forth specific standards that must be met before a waiver can be considered knowing and voluntary.

88. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) A valid ADEA waiver must: Be in writing and understandable; Specifically refer to ADEA rights or claims; Not contain language waiving any rights or claims that may exist in the future or after the date the agreement is signed;

89. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) Be in exchange for something of value in addition to that which the employee is already entitled; Advise the employee to consult independent counsel before signing; and Provide the employee with at least 21 days in which to consider the agreement and 7 days to revoke it after signing.

90. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) The OWBPA imposes additional requirements on employers when the release is sought in connection with a reduction in force or layoff of two or more employees over the age of 40.

91. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) First, the time period that an employee must be given to consider the agreement increases from 21 to 45 days. Second, the employer must provide the over-40 employee with detailed information about the reduction in force and disclose in writing:

92. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) The class, unit or group of individuals covered by the reduction in force; The eligibility factors for the reduction in force;

93. © Reed Business Information, a division of Reed Elsevier Inc. Minimizing Age Discrimination When Employees Leave the Company (con’t.) The job titles and ages of all individuals eligible for or selected for the reduction in force; and The ages of all employees in the same class who were not eligible or not selected for the reduction in force.

94. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 1 Which of the following are permissible factors to consider during a reduction in force: a.Salary level b.Ability to accept reassignment c.Productivity level d.Age

95. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 1: Answer Which of the following are permissible factors to consider during a reduction in force: a.Salary level b.Ability to accept reassignment c.Productivity level d.Age

96. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 1: Rationale d. It is unlawful to consider age when determining which employees to select for a reduction in force. Choices a. (salary level), Choice b. (ability to accept reassignment) and Choice c. (productivity level) are all permissible considerations that do not violate the ADEA because they do not discriminate based on age.

97. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2 Acme Manufacturing seeks to give a strength test to all job applicants and employees. Younger individuals usually score better on the test as it requires strength and agility. Is Acme permitted to give the test?

98. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2 (con’t.) a.Yes, Acme is permitted to give the test to all applicants and employees. b.No, the test will have a disparate impact and discriminate against older applicants and employees. c.Yes, Acme is permitted to give the test to applicants after a conditional job offer has been made and employees if it can show that the test is job related and had a stated and legitimate business purpose.

99. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2: Answer a.Yes, Acme is permitted to give the test to all applicants and employees. b.No, the test will have a disparate impact and discriminate against older applicants and employees. c.Yes, Acme is permitted to give the test to applicants after a conditional job offer has been made and employees if it can show that the test is job related and had a stated and legitimate business purpose.

100. © Reed Business Information, a division of Reed Elsevier Inc. Test Yourself Question 2: Rationale c. Yes, Acme may give the test to applicants after a conditional job offer has been made and employees if it can show that the test is job-related and has a stated and legitimate business purpose. Also, Acme must show that it considered and sought to reduce the impact of the test on older employees. Choice a. is incorrect because although Acme may give the test, it must do so within certain parameters. Choice b. is incorrect because even if the test does have a disparate impact on older workers, the test may be permissible if job related and based on a reasonable factor other than age.