Jody Blanke, Professor Computer Information Systems and Law Mercer University, Atlanta 1

Age Discrimination Age Discrimination in Employment Act (ADEA) applies to all public and private employees with at least 20 employees covers employees aged 40 and above. While enforced by the EEOC, it differs from Title VII More lenient regarding adverse employment decisions – employer can rebut a prima facie case by showing any “reasonable factor other than age.” An action is not barred if another protected member is treated better, e.g., an action by a 62-year old is not barred because the replacement was a 55-year old No protection form “reverse discrimination” for those under 40 2

Age Discrimination Prima facie case: Employee is in protected class Employee was terminated or demoted Employee was performing job well enough to meet employer’s expectations Others not in the protected class were treated more favorably. Employer’s Defense – Bona Fide Occupational Qualification (BFOQ) Age limit is reasonable necessary to essence of employer’s business All or substantially all of the individuals over that age are unable to adequately perform the job requirements, or Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age 3

Gross v. FBL Financial Services (2009) Supreme Court changed the standard of proof requirement in ADEA cases, requiring an employee to prove by a preponderance of the evidence that age was a “but-for” cause of the challenged adverse employment action, rather than shifting the burden of proof to the employer to show that the action would have been taken regardless of age once the employee presented evidence that age was a motivating factor. Congress is still considering whether to overturn this decision in favor of the traditional Title VII standard. 4

Disability Discrimination The Americans with Disability Act (ADA) prohibits employers from discriminating against a qualified individual with a disability with regard to application, hiring, advancement, discharge, compensation and training. The ADA applies to all private employers with 15 or more employees. The ADA requires employers to make “reasonable accommodations” for requesting employees who have a “physical or mental impairment that substantially limits a major life activity.” 5

Definition of Disability Very broad definition, but does not include Morbid obesity (unless the result of a physiological condition) Lack of an education Having a prison record Specifically excluded under ADA: Homosexuality Bisexuality Sexual-behavior disorders Compulsive gambling Kleptomania Pyromania 6

Reasonable Accommodation The ADA requires employers to make reasonable accommodations as long as doing so does not cause the employer “undue hardship.” This includes: Making work facilities accessible Restructuring jobs or modifying work schedules Reassigning individuals to other jobs Acquiring or modifying equipment or devices Modifying examinations, training materials, or policies Providing qualified readers or interpreters 7

Employer Defenses Undue Hardship The ADA defines an undue hardship as an activity requiring significant difficulty or expense in light of a variety of financial, logistical and other factors. Business Necessity Tests and standards may be acceptable under the ADA if they are related to the job and consistent with business necessity. Permissible Exclusion A disabled person may be excluded from an employment opportunity only if, by reason of the disability, he or she (with or without reasonable accommodation) cannot perform the essential functions of the job or if the individual’s employment poses a significant risk to the health or safety of themselves or others. 8