1. Chapter 11 Age Discrimination Employment Law for BUSINESSsixth edition Dawn D. BENNETT-ALEXANDER and Laura P. HARTMAN McGraw-Hill/Irwin Copyright © 2009 by The McGraw-Hill Companies, Inc. All rights reserved.

2. Statutory Basis Sec. 4 (a) It shall be unlawful for an employer— (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privilege of employment, because of such individual’s age; (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or (3) to reduce the wage rate of any employee in order to comply with this chapter. 11 – 2

3. Common Myths about Older Workers As workers, older employees: Lack imagination/innovation/creativity Will tire more easily than younger workers Are less able to perform than younger workers Don’t understand technology Have poor eyesight and poor health Don’t want to travel too much and are generally more stubborn and uninterested in learning Make too much money since compensation is often based on seniority and not performance Are just making time before they can retire 11 – 3

4. Age Discrimination in Employment Act In 1967, Congress enacted the Age Discrimination in Employment Act (ADEA) for the purpose of “promoting the employment of older persons based on their ability rather than age, and prohibiting arbitrary age discrimination in employment.” Applies to individuals who are age 40 and older. Like Title VII, the ADEA is enforced by the EEOC. 11 – 4

5. ADEA (cont’d) Unlike Title VII, there is no reverse discrimination under the ADEA, i.e., you cannot file a claim if you feel you have been discriminated against for being too young – under 40. Unlike Title VII, ADEA covers employers who regularly employ 20 or more employees, rather than 15. Unlike Title VII, compensation for pain and suffering or emotional distress is not available. Usually, damages are limited to back pay and front pay. 11 – 5

6. Proving Discrimination: Prima Facie Case Plaintiff must establish the 4 elements of a prima facie case in order to persuade the court that he or she has a claim for age discrimination: Plaintiff a member of the protected class (age 40 or older) Plaintiff suffered an adverse employment action (terminated or demoted despite satisfactory work; not hired) Plaintiff is qualified for the position (hired for the job and never told there were any problems –good evaluations; or has the necessary skills advertised.) Others not in class were treated more favorably than plaintiff (position filled by a younger person w/ similar skills) 11 – 6

7. Question about Element #4 Must the older worker show that a worker under 40 replaced them to establish a prima facie case???? No! The Supreme Court held in O’Conner v. Consolidated Coin Caterers (1996) that a plaintiff can state a claim as long as she or he is replaced by someone younger, even if the replacement is 40 years old or older! (Text page 563) 11 – 7

8. Employer’s Defenses Once a Plaintiff has established a prima facie case of age discrimination, the burden of proof shifts to the employer to present a legitimate and nondiscriminatory reason for its actions. 2 Primary defenses available: BFOQ (Bona Fide Occupational Qualification): The age limit is reasonably necessary to the normal operation of the employer’s business, i.e., the essence of the business requires exclusion of a certain age and older because a worker’s ability to do the job after a certain age is diminished (firefighters, airline pilots, judges). RFOA (Reasonable Factor Other than Age): Employer can show that the employment decision was based on any reasonable factor other than age, i.e., employee not performing satisfactorily. 11 – 8

9. Employee’s Response: Proof of Pretext Once plaintiff proves the 4 elements of a prima facie claim and the employer offers a justification for its action(s), the plaintiff then must show that the defense offered is a mere pretext for discrimination, i.e., that it is not the true reason for the action(s), and there is some underlying motivation to which the employer has not admitted. Plaintiff does not have to show that age was the ONLY factor motivating the employment decision! Plaintiff just needs to show that age was a determining factor. In addition to providing direct evidence of discrimination, an employee can show pretext by proving that: The offered reasons for the adverse employment action have no basis in fact. The offered reasons did not actually motivate the adverse employment action. or The offered reasons are insufficient to motivate the adverse action taken. 11 – 9

10. Claims of Disparate Impact under ADEA Like disparate treatment cases, where a policy or rule of an employer, though not discriminatory on its face, has an adverse effect on employees age 40 and older (disparate impact cases), the EEOC requires that these factors be job-related, i.e., based on reasonable factors other than age. Example: requiring a certain speed on an assembly line or requiring a score of 75% or better on a dexterity test before hiring, may have a disparate impact on applicants over 40, but it is permissible if job-related. 11 – 10

11. 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. 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. 11 – 11

12. Waivers under the Older Workers’ Benefit Protection Act of 1990 (OWBPA) The OWBPA of 1990, which amended the ADEA, was passed by Congress to address the legality and enforcement of early retirement incentive programs that required workers to waive their rights under the ADEA. Under the ADEA, as amended by the OWBPA, waivers of this sort are enforceable, if they meet certain requirements. Every waiver must be knowing and voluntary. If an employee signs a defective waiver, the employee is not required to give back any benefits received under the waiver. 11 – 12

13. Summary Employees are protected against discrimination on the basis of their age under the ADEA, unless age is a bona fide occupational qualification. To prove a case of age discrimination, the employees must show that: They are 40 years of age or older. They suffered an adverse employment decision. They are qualified for the position (either that they meet the employer’s requirements or that the requirements are not legitimate). They were replaced by someone younger. 11 – 13

14. Summary (continued) Once the employee has presented this information, the employer may defend its decision by showing that: Age requirement of a job is a bona fide occupational qualification. This can be done by showing: The age limit is reasonably necessary to the employer’s business and All or a substantial number of people over that age are unable to perform the requirements of the job adequately; or Some of the people over that age possess a trait which disqualifies them for the position and it cannot be ascertained except by reference to age. The decision was made based on some other reasonable factor than age. The employee was not qualified for the position. The decision to leave was because of a voluntary retirement plan. The “same actor” defense may be used in some courts. The presumption is that when the same person hires and fires a worker protected by ADEA, there is a permissible inference that the employee’s age was not a motivating factor in the decision to terminate. 11 – 14

15. Summary (continued) Once the employer presents its defense, the employee will have the opportunity to prove that this defense is mere pretext for the actual discrimination that exists. Federal courts are split as to whether an employer can terminate an older employee due to economic considerations. The OWBPA amended section 4(f) of the ADEA and places restrictions where employers offer employees amounts of money through retirement plans as incentives for leaving the company. The Employee Retirement Income Security Act (ERISA) regulates private employee benefit plans. It governs the operation of welfare and retirement plan provisions. 11 – 15

16. End of Age Discrimination Power Point!  11 – 16

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