Sprint- ing to Understand Age Discrimination

1. Sprint-ing to UnderstandAge Discrimination Raymond Peeler (raymond.peeler@eeoc.gov) Senior Attorney-Advisor Office of Legal Counsel U.S. Equal Employment Opportunity Commission

2. General Prohibition:Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et.seq. • Prohibits discrimination“Because of Age” against people at least 40 years old. Supreme Court OK’s favoring older person. General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004).

3. Types of Prohibited Actions • Affecting a “compensation, terms, conditions, or privileges of employment” • Hiring, firing, raises • Appraisals, transfers • Employee benefits • Harassment • Limits, segregates, or classifies to deprive of employment opportunities or otherwise adversely affects status as employee.

4. Types of Prohibited ActivitiesAdvertisements It is unlawful to advertise a preference for younger applicants or employees, unless an exception to the ADEA applies Employers may advertise a preference for older workers.

5. Proxies for Age Factors that correlate with age, but are not directly dependent on age, do not prove age discrimination without more. However, If the factor relied upon is itself based on age, then it is a “proxy” for age.

6. Proxies for AgeExamples Proxy for age in violation of ADEA: • Firing employee to prevent eligibility for early retirement at age 55. Correlated with age, but not a proxy: • Years of Service/Seniority • Salary But be aware of “disparate impact.”

7. Disparate Impact and Age • Neutral policy or practice that has an adverse impact against older workers collectively may be discriminatory. • Unlike Title VII claims: • Employee must isolate and identify a specific practice. • Employers are not liable if have “reasonable factor other than age” to justify the practice.

8. Specific ADEA Issues:Age in the Application Process • Employers and employment agencies cannot advertise preference for younger employees. • It is not unlawful to ask for age-defining info., such as age, high school grad. date, etc., but: • Will be closely scrutinized if charge filed. • Should inform applicants that not using information for unlawful reasons based on age. • Tear-off sheets are preferable or wait to ask until post-offer.

9. Specific ADEA Issues: Retirement In most circumstances, employers may not require retirement based on age. Exceptions: • Bona-Fide Executives – high policy makers may be subject to involuntary retirement at 65. • Bona Fide Occupational Qualification (BFOQ) (VERY RARE)

10. Exemptions and Defenses to ADEA Liability • BFOQ age limit must be: • Reasonably necessary to the job’s “essence;” and • Those excluded from job by limit are in fact disqualified; or • Disqualifying trait cannot be ascertained without reference to age. • Bona Fide Seniority Systems • Length of service must be primary criterion • Generally not bona fide if those with longer service receive fewer rights/benefits.

11. Employee Benefits Equal Benefit/Equal Cost – reductions in benefits, such as health or life insurance, must be justified by increased cost to the employer. Employer has obligation to show that benefit reduction meets this test.

12. State and Local Government:Firefighters & Law Enforcement • Maximum hiring age OK if: • In state or local law in effect on or prior to 3/3/83 • Age not lowered between 3/4/83 and 9/30/96 • Enacted in state or local law after 9/30/96 • Mandatory Retirement Age OK if: • In state or local law in effect on or prior to 3/3/83 • Age not lowered between 3/4/83 and 9/30/96 • Enacted in state or local law after 9/30/96, provided that retirement age is not less than 55 years old • Provided no “subterfuge to evade” purpose

13. State and Local Government:Elected & Appointed Officials • Elected Officials in public office, and their “personal staff,” are not protected by the ADEA. • Relevant question for staff coverage: Did the elected official personally selected him/her for the job? • Appointees at the policy-making level or “immediate advisor(s) with respect to the exercise of the constitutional or legal powers of the office” also are not covered. • Government officials covered by civil service laws ARE covered by the ADEA.

14. State and Local Government: Immunity From ADEA Suits State and Local governments retain their immunity from suit for ADEA claims that are filed by private individuals BUT The federal government may pursue ADEA claims against state and local governments. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000)

15. Waiver of ADEA Rights:Older Workers Benefit Protection Act (OWBPA) • Must be clearly written; • Cannot include future claims; • Must specifically refer to rights or claims under the ADEA; • Must provide some extra consideration in exchange for waiver; • Must advise in writing to consult with an attorney prior to signing; and • Must provide 21 days to consider prior to signing & 7 days to revoke agreement after signing.

16. Waiver of ADEA Rights:OWBPA & Reductions In Force Also must inform employees of: • Job titles and ages of those eligible/selected for RIF; • Ages of all people in same job classification or organizational unit not eligible/selected for RIF; AND • Criteria for RIF selections In such group waivers, must give 45 days to consider waiver & 7 days to revoke after signing.

17. Proving Age Discrimination:Age-Based Statements • Who made statement? • Decisionmaker? • Someone with influence over decisionmaker? • In what context? • When? Close in time to adverse action? • How often were such statements made? Does it reveal an ageist work environment? • Beware categorizing statements as “stray remarks.”

18. Proving Age Discrimination:Reductions in Force • Duties assumed by younger employee? • What are ages of all those considered for RIF vs. those who fired? • What motivated the RIF? Does the RIF fulfill this motivation? • What are RIF criteria? Are they age-neutral? Are they consistently applied? • Evidence of age bias outside the decisional group relevant? (Mendelsohn v. Sprint/United Mgmt. Co. – Being Considered by Supreme Ct.)

19. Retaliation It is unlawful to discriminate against someone who: • opposed any practice made unlawful by the ADEA, or • participated in any manner in an investigation, proceeding, or hearing under [the ADEA]. Any act that “well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination” is actionable.”

20. Example Janice’s supervisor frequently referred to her as “prehistoric” and “the walking fossil.” When he curtailed her duties because she “couldn’t keep up,” she filed a charge w/ EEOC. Soon thereafter, she was excluded from weekly training lunches available to all other employees to remain updated on the latest business practices. Analyze Janice’s potential retaliation claim.

21. Filing a Claim under ADEA:Federal Employees • Administrative Process: Contact EEO Office at your agency with intent to begin EEO Counseling within 45 days of the alleged discriminatory event. OR • Civil Action: Notify EEOC of intent to file civil action. Can go to court if not resolved by EEOC after 30 days.

22. Filing a Charge under ADEA:Contractors, State/Local employer, or Private Employers • File charge with appropriate EEOC Office w/i 180 days (if no state protections) or 300 days (if state also has admin. process) • Civil Action – must wait 60 days after date charge filed. Unlike Title VII, do not need “Right to Sue” letter from EEOC.

23. Sprint-ing to UnderstandAge Discrimination Any Questions? Thank you for your time and attention.