Investigating Age Discrimination Complaints 16 th 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 –Department of Health and Human Services OCR Website age.htmlhttp:// age.html –Department of Education OCR Website