1. Chapter 12 Age Discrimination
McGraw-Hill/Irwin
Copyright © 2012 by The McGraw-Hill Companies, Inc. All rights reserved.

2. Learning Objectives
Distinguish the perception of older workers from the reality of their impact in the workplace
Describe the history of the protection of older workers in the United States.
Distinguish the ADEA and state-based age discrimination laws
Identify the legal options available to an employee who believes that he or she is a victim of age discrimination
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3. Learning Objectives
Explain the prima facie case of discrimination based on age
Describe the bona fide occupational qualification defenses available to employers under the ADEA
Distinguish circumstances where disparate impact and disparate treatment apply in connection with age discrimination
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4. Learning Objectives
Analyze factual circumstances when employer economic concerns may justify adverse action against particular groups of workers
Recognize necessary elements to establish pretext under the ADEA.
Define the parameters of a valid waiver of ADEA rights
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5. Oldie…But Goldie! American culture values youth
Older workers perceived as and “issue to be dealt with” and more expensive to retain
Younger workers perceived as better educated and better qualified
Statistics do not match general perceptions about older workers
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6. Oldie…But Goldie!
Workforce that was 55 years and older increased from 12 percent to 19 percent between
Study by Pew Research
75 percent of workers today expect to continue to work for pay after they retire
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7. Oldie…But Goldie! American Association of Retired People report
Additional cost for older workers are minimal
The act of generalizing constitutes wrongful discrimination
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8. Realities about Older Workers and Age Discrimination
Employers should be aware of the impact of terminations based on salary since older workers may be higher paid than others on average, due to job seniority
Age may not be used as a job qualification
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9. Realities about Older Workers and Age Discrimination
To file claims under the Age Discrimination in Employment Act, claimants must be 40 or older
Employees are not required to retire at age 65 in the United States
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10. Myths about Older Workers
Older employees
Are not hard workers
Will get tired more easily than younger workers
Are less able to perform than younger workers
Don’t understand technology
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11. Myths about Older Workers
Older employees (contd..)
Don’t want to travel too much and are generally more stubborn and uninterested in learning
Make too much money since it’s often based on seniority and not performance
Are just making time before they can retire
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12. Regulation: Age Discrimination in Employment Act
Prohibits discrimination in employment on the basis of age
Applies to individuals who are at least 40 years old
No upper age limit
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13. Distinctions between ADEA and Title VII
The ADEA is more lenient than Title VII regarding the latitude afforded employers’ reasons for adverse employment decisions
An employee is not barred from pursuing a claim simply because the employer treated another older worker better
The act only protects employees over 40 from discrimination
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14. Distinctions between ADEA and Title VII
Youth’s “reverse discrimination claim”
The EEOC modified its regulations to remove language that prohibited discrimination against younger workers
To ensure appropriate and adequate information exists as to hiring practices in connection with age, the ADEA has specific record-keeping provisions for employers
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15. State Law Claims State laws on age discrimination varies widely
Some have no age discrimination laws
Other have laws that track the ADEA
A large number of states laws that provide greater protections than those afforded by the ADEA
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16. State Law Claims Greater protection may include for following
State age discrimination laws apply to a wider range of employers
State age discrimination laws sometimes allow a wider range of damages
States often provide longer filing periods
No state is permitted to extend the protection to someone younger than 40
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17. Employee’s Options
An employee who believes that his or her employer has engaged in age discrimination must file a complaint using the employer’s internal grievance procedures
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18. Employee’s Options Other options
File a complaint with the federal Equal Employment Opportunity Commission
File a complaint with the state equivalent of the EEOC (if one exists)
File a lawsuit in federal court under the ADEA
File a lawsuit in state court under state age discrimination laws
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19. Employee’s Prima Facie Case: Disparate Treatment
Member of a protected class
40 years or older
Adverse employment action: Any action or omission that takes away a benefit, opportunity, or privilege of employment from an employee
Decision not to hire or terminate the employee
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20. Employee’s Prima Facie Case: Disparate Treatment
Qualified for the position: Able to meet the employer’s legitimate job requirements
Meets legitimate job requirements
Dissimilar treatment
Treated differently from others not in the protected class
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21. Burden Shifting No More
Court decision on Gross v. FBL Financial Servs. Inc.
No burden shifting occurs in ADEA cases
Mixed-motives age discrimination claims do not exist under the ADEA for disparate treatment claims
Burden shifting still applies to Title VII cases
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22. Employer’s Defenses Bond Fide Occupational Qualification
EEOC guidelines for employers in an age discrimination case brought under the ADEA
The age limit is reasonably necessary to the essence of the employer’s business
All or substantially all of the individuals over that age are unable to perform the job’s requirements adequately
Some of the individuals over the age possess a disqualifying trait that cannot be ascertained except by reference to age
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23. Employer’s Defenses
Mandatory retirement: Employee must retire upon reaching a specified age
Deemed illegal by the 1986 amendments to the ADEA
Limited to two circumstances
Employer cannot base employment decisions on age-related stereotypes
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24. Proving a Case of Age Discrimination
Disparate Treatment
Step 1: Employee’s prima facie case
The employee is in the protected class
She or he was terminated or demoted
Employee met employer’s legitimate expectations
Others not in the protected class were treated more favorably
Step 2: Employer defenses
BFOQ
Step 3: Employee may evidence pretext for employer actions
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25. Proving a Case of Age Discrimination
Disparate Impact
Step 1: Employee’s prima facie case
A facially neutral policy or rule is imposed by an employer
Which has a different effect on an older group of workers
No intent to discriminate is necessary
Step 1: Employer defenses
Reasonable factor other than age (RFOA)
Economic concerns
Seniority
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26. Employee’s Prima Facie Case: Circumstances Involving Claims of Disparate Impact
Reasonable factors other than age: May include any requirement that does not have an adverse impact on older workers, as well as those factors that do adversely affect this protected class but are shown to be job-related
There is no RFOA defense in Title VII
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27. Employee’s Prima Facie Case: Circumstances Involving Claims of Disparate Impact
Economic concerns
Nothing in the ADEA prohibits elimination of a protected employee’s position for budgetary reasons
Reduction in force (RIF)
Employers may offer pay cut in lieu of termination (if business necessity)
Correlation between compensation and age
Two views from the courts
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28. Defenses Based on Benefit Plans and Seniority Systems
The ADEA specifically excludes bona fide retirement plans that distinguish based on age
Are not a “subterfuge”
Bona fide voluntary retirement plans must be truly voluntary
Reasonable person must not feel compelled to retire
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29. “Same Actor” Defense
Same “actor” both hires and fires a worker – permissible inference that the employee’s age was not a motivating factor in the decision
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30. Retaliation The ADEA prohibits retaliation
Punitive damages: Punitive damages are designed to punish the party being sued rather than compensate the injured party
Can be quite high, especially if the actions are especially offensive, the defendant is a large company, and the jury is angry
Are available for retaliation claims
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31. Employee’s Response: Proof of Pretext
Where there is direct evidence of discrimination, proof of pretext is not required
Showing pretext:
Offered reasons for the adverse employment action have no basis in fact
Offered reasons did not actually motivate the adverse employment action
Offered reasons are insufficient to motivate the adverse action taken
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32. Employee’s Prima Facie Case: Hostile Environment Based on Age
The employer is 40 years or older
The employee was subjected to harassment, either through words or actions, based on age
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33. Employee’s Prima Facie Case: Hostile Environment Based on Age
The harassment had the effect of unreasonably interfering with the employee’s work performance and creating an objectively intimidating, hostile, or offensive work environment
There exists some basis for liability on the part of the employer
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34. Waivers under the Older Workers’ Benefit Protection Act of 1990
Waiver: The intentional relinquishment of a known right
Concerns the legality and enforceability of early retirement incentive programs and waivers of rights under the ADEA
Every waiver must be knowing and voluntary
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35. Waivers under the Older Workers’ Benefit Protection Act of 1990
The waiver may not bar the employee from filing a claim with the EEOC
If an employee signs a defective waiver, the employee is not required to give back any benefits received under the waiver
Provisions in connection with early retirement plans
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36. The Use of Statistical Evidence
Generally more useful in disparate impact cases
Skepticism relating to statistical evidence in age discrimination cases due to attrition in the workforce
Supreme court guidelines
Standard deviations and percentage comparisons
Surrounding facts and circumstances are important
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37. Remedies Money damages
Liquidated damages: Limit awards to a predetermined amount
Equitable relief: Relief that is not in the form of money damages, such as injunctions, reinstatement, and promotion
Reinstatement, promotions, and injunctions
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38. Employee Retirement Income Security Act
Regulates private employee benefit plans
Protects employees from wrongful denial of all types if benefits
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39. Employee Retirement Income Security Act
Regulates
Who must be covered
Vesting requirements
The amount that the employer must invest
Distinctions among benefit plans
Reduction in benefits across the board
Benefits based on seniority
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40. Management Considerations
Employers should:
Evaluate the true requirements of a position
Test for those characteristics
Pay attention to the basis for decision making and selection in connection with training and development opportunities
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41. Management Considerations
Problems with RIFs:
Employers generally do not retain intricate written analyses of performance
Managers and supervisors will likely evaluate an employee as compared to other employees
The employer may make a decision based on some factor other than performance
Be sure all employees periodically receive an objective, detailed performance appraisal
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42. Management Tips
Any job requirement on the basis of age must be subject to your highest scrutiny
Review all termination decisions carefully in order to ensure fair and balanced procedures
Terminating an older worker and replacing her or him with another worker who is over 40 does not protect you from a charge of age discrimination
Review all recruiting literature to remove all age-based classifications
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43. Management Tips
You may not terminate an older worker on the basis of age
Employers should neither permit nor encourage age-based remarks, comments, or jokes to avoid liability under the ADEA for age-related harassment
Employers should be sensitive about the inclination in the past to single out workers over 40 for medical exams
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