Chapter Objective: The purpose of this chapter is to address what Workforce 2000 tells us will be a growing population in America's work force: older workers. The chapter identifies the arguments for and against protection on the basis of age and introduces the Age Discrimination in Employment Act. The Act places the burden of proving a case of age discrimination on the plaintiff claiming the discrimination, but then offers employers a number of defenses to these claims. Finally, unique issues which are raised during a reduction in force are confronted.
Scenarios - Points for discussion Scenario One: A firm is allowed to make decisions on a purely economic basis. However, the courts have said that where salary is a proxy for age, salary may not be used in order to determine retention. This is an extremely difficult issue and one which always serves as a great jumping off point for many of the problems raised by ageism and decision-making. See Economic Concerns, p. 332. Scenario Two: The ADEA would require that, as long as this individual is qualified at the time she is hired, the employer may not make a decision about her employment based on her age.
Scenario Three: Similar to Scenario Two, Dan’s concerns regarding Mary’s years of experience and “stage” appear to be age-based. Instead of basing his decision on age-related stereotypes, Dan should make pre-employment inquiries that would help him assess Mary’s attitude toward this possible position, and to her ability to be part of a team with backgrounds that are different from her own.
LECTURE NOTES I. Oldie . . . But Goldie? A. The introduction to this chapter contrasts America's treatment of its older workers with that of the Japanese.
B. It must be very strange indeed to those of other cultures like the Japanese, who revere age and believe that with it comes wisdom and insight unobtainable by the young.
C. In our culture the general perception is that with youth comes energy, imagination and innovation. With age comes decreasing interest, lack of innovation and imagination and a lessening of the quality of the person.
D. While statistics show that older workers are more reliable, harder working, more committed and have less absenteeism than younger workers--all characteristics which employers say they value--the general perception of them as employees is exactly the opposite. Furthermore, older workers are now more likely to remain on the job than their counterparts earlier in this century.
II. Regulation - Age Discrimination in Employment Act of 1967 A. In 1967, Congress enacted the Age Discrimination in Employment Act ("ADEA") for the express purpose of "promoting the employment of older persons based on their ability rather than age [and prohibiting] arbitrary age discrimination in employment."
1. The Act applies to employment by public and private employers, unions and employment agencies, as well as by foreign companies located in the United States with more than 20 workers.
2. On its effective date, the Act covered employees between the ages of 40 and 65. The upper limit was extended to 70 in 1978, and later removed completely. There is no longer an upper age limit, nor is mandatory requirement allowed except in certain circumstances.
Lecture Note: Have a student read the passage at the top of p. 431 from the Graefenhain case, then ask each student whether she or he believes that the ADEA and the prohibition against using age as a component of an employment decision is the "right" way to handle the problems the Act seeks to address, or whether there are other alternatives.
B. Distinction between ADEA and Title VII
1. Both are enforced by the EEOC, as well as through private actions.
2. However, discrimination based on age is substantively different from discrimination based on factors covered by Title VII in two important ways.
3. The ADEA is more lenient than Title VII regarding the latitude afforded employers' reasons for adverse employment decision.
4. The ADEA allows an employer to rebut a prima facie case of age discrimination by identifying any "reasonable factor other than age" which motivated the decision.
5. The Act only protects employees over forty from discrimination. Unlike Title VII, there is no protection from "reverse" discrimination. In other words, an individual under 40 can not file a claim under the Act based on the claim that she was discriminated against because of her youth -- that it was because she was too young.
It should be noted however, that certain state laws or state case law precedents allow for what might be considered a youth’s “reverse discrimination” claim under state age discrimination statutes.
One New Jersey man who claimed he was fired from a bank VP position because of his young age (25) was allowed to proceed in that state court.
The ADEA’s protection does not extend to state workers under the United States Supreme Court’s decision in Kimel v. Florida Board of Regents. You may also note, as the text does, that the proposed Older Workers Rights Restoration Act that was introduced in the U.S. Senate in May 2001 would effectively bring these workers back under the ADEA’s protection, as it would require states receiving federal funds to waive their immunity to ADEA suits brought by their state employees. [Note: you should check the current status of the bill.]
1.The Act has specific record-keeping provisions for employers. Employers are required to maintain the following information for three years for each employee and applicant, where applicable:
date of birth
rate of pay
compensation earned each week
2.Employers are required to maintain the following information for one yearfor each employee, and for both regular and temporary workers:
job applications, resumes, or other employment inquiries in answer to ads or notices, plus records about failure or refusal to hire.
records on promotion, demotion, transfer, selection for training, layoff, recall, or discharge of any employee.
job orders given to agencies or unions for recruiting personnel for job openings.
results of physical exams that are considered in connection with any personnel action.
ads or notices relating to job openings, promotions, training programs, or opportunities for overtime.
C. The Burdens of Proof
1. As in McDonnell Douglas Corp. v. Green (Title VII) and later adapted to age discrimination claims under the ADEA, the employee must establish the following four elements in order to persuade the court that she or he even has a claim for age discrimination:
a. he is in the protected class;
d. others not in the protected class were treated more favorably.
2. Member of the Protected Class.In order to satisfy the first requirement of the prima facie case, the employee must merely show that the she or he is forty years old or older.
3. Adverse Employment Action. This may include a decision not to hire the applicant, or to terminate the employee.
4. Qualified for The Position. a. If applicant is not qualified, then the employer's decision regarding the applicant would be justified and the applicant's claim fails.
b. The position requirements, however, must be legitimate requirements, and not merely devised for the purpose of terminating or refusing to hire older workers.
c. Courts have allowed this requirement to be met by the employee simply showing that the employee was never told that performance was unacceptable.
d. The qualifications requirement is not a difficult one and courts have even held that the fact that employee was hired initially indicated that he or she had the basic qualifications.
5. Dissimilar Treatment. The employee or applicant must show that he was treated differently than other employees who are not in the protected class. This requirement has presented the most difficulty for courts, but the split in courts was resolved by the United States Supreme Court in O’Connor v. Consolidated Coin Caterers.
a. Under O’Connor, the older worker would have to have been “replaced” by an individual who is substantially younger than the plaintiff. The Court stated that this “was a far more reliable indicator of age discrimination under the ADEA than was the fact that the plaintiff was replaced by someone outside the protected class.” [116 S.Ct 1307].
6. The Fourth Circuit found that in determining whether an advertisement had a discriminatory affect on older individuals, “the discriminatory effect of an advertisement is determined not be ‘trigger words’ but rather by its context.” The ad is not considered discriminatory because of word or words but rather whether the intent of the ad is to discriminate against older individuals.
a. Section 4(e) makes it unlawful to "print or publish or cause to be printed or published, any notice or advertisement . . . indicating any preference, limitation, specification, or discrimination, based on age."
b. See Box 12-3.
Lecture Note: Discuss: While the use of certain "trigger" words like "girl" or "young" does not establish a per se ADEA violation, the context of the statement is important determining its discriminatory effect. For instance, use of "recent college graduate" is not discriminatory if a personnel agency merely intended to identify those services which it offered to that specific class of individuals.
D. Employers' Defenses 1. Once the employee has presented evidence relating to the employer's actions, the burden of proof shifts to the employer to present a legitimate and nondiscriminatory reason for its actions.
2. See Box 12-4.
3. Bona Fide Occupational Qualification
a. If an employer is sued for age discrimination, the defense of BFOQ is available.
b. The employer's proof of a bona fide occupational qualification BFOQ under the ADEA is slightly different and less exacting than under Title VII.
1) Title VII requires that the employer demonstrate that
a) the essence of the business requires the exclusion of the members of a protected class; and
b) all or substantially all of the members of that class are unable to perform adequately in the position in question.
2) The EEOC follows the requirements of Title VII in connection with the ADEA but adds one further possibility for the employer's proof. The EEOC identifies that which the employer must prove in an age discrimination case brought under the ADEA as:
a) The age limit is reasonably necessary to the essence of the employer's business; and either b) all or substantially all of the individuals over that age are unable to perform the job's requirements adequately; or c) Some of the individuals over that age possess a disqualifying trait that cannot be ascertained except by reference to age.
1 - The third element of the proof allows an employer to exclude an older worker from a position which may be unsafe to some older workers. This defense would only be accepted by a court where there is no way to individually assess the safety potential of a given applicant or employee.
c. When Congress passed the 1986 amendments to the Age Discrimination in Employment Act (ADEA) of 1967, prohibiting mandatory retirement on the basis of age for most workers, it included several temporary exemptions, notably one for tenured faculty in higher education. That exemption expired Dec. 31, 1993. Mandatory retirement has been limited to two circumstances.
A small number of highlevel employees with substantial executive authority can be subjected to compulsory retirement at age 70. This exception is a very narrow one and does not allow for compulsory retirement policies for midlevel managers.
2) Persons in selected occupations, such as police and firefighters, in which age is a bona fide occupational qualification have been subject to mandatory retirement.
Regarding tenured faculty members, until recently, ADEA did not prohibit compulsory retirement at age 70 for tenured faculty members at institutions of higher learning. This exception expired on December 31, 1993, making compulsory retirement ages for tenured faculty no longer permissible. However, some educators are pushing for reinstatement of the ADEA exemptions.
4. Reasonable Factor Other Than Age
a. The employer's defense that the adverse action was taken as a result of "reasonable factors other than age" to allow employers to discriminate against protected persons for reasons which may have an adverse effect on older workers, such as dexterity or strength.
b. The EEOC regulations require that the factor be job-related if the distinction has a disparate impact on employees over forty.
c. Reasonable factors may therefore include any requirement which does not have an adverse impact on older workers, as well as those factors which do adversely affect this protected class, but are shown to be job-related.
Lecture Note: What if the requirement is "to fit in with the style of the place" such as a trendy rock bar? It is arguable that this "fit" is the requirement, not the age requirement, (because there may be some over 40 who would fit in like Warhol-types, and so on).
Parrish v. Immanuel Medical Center, 92 F.3d 727 (8th Cir. 1996)
Issue: Whether there was insufficient evidence to support a finding of age discrimination.
Facts: Although Mary Ruth Parrish received satisfactory performance reviews during her registrar position and learned new technology during her nine years at Immanuel Medical Center Immanuel (Immanuel) she was reassigned to a new “auditing position.” Conflicting stories regarding the responsibilities of the auditing position were given to the court. Immanuel stated the duties would include auditing other registrars’ work; Parrish claimed the responsibilities included stapling packets of information together. The parties agree that Mary was not given the option of returning to her position as a parttime registrar and was presented the offer to transfer as an allornothing proposition. The following day Mary did not report to work but called her supervisor to ask her to reconsider her decision to transfer Mary. The supervisor refused so Mary, at the age of sixty-six, resigned. Mary sued Immanuel, alleging that she was constructively discharged because of her age, prohibited by the ADEA, and her disability. Immanuel contended that it legitimately sought to transfer Mary because of her inefficiency and her difficulties with the new computer system. The jury rejected Immanuel's explanation and found that Immanuel had discriminated against Mary due to her age and disability. A jury awarded Mary $21,218.15 in compensatory damages. Based on the jury's finding that Immanuel willfully violated the ADEA, the district court determined that Parrish was entitled to liquidated damages and accordingly entered final judgment for Parrish in the amount of $42,436.30.
Decision: The Court of Appeals, Beam, Circuit Judge, held that: evidence was sufficient to support finding that employer discriminated against employee because of her age based on the fact that she had previously received satisfactory reviews and the supervisor’s comment that even “younger workers” were having problems learning the new computer system.
Should employers be able to terminate or transfer older workers when they can not grasp new technology? What can employers do to protect themselves?
An employer may terminate any worker that is not performing satisfactory with their job responsibilities however, age can not be the determining factor. The decision to terminate an individual must be based on performance or other factors not pertaining the stereotypes of age.
What do you think the purpose of the ADEA is? What do you think the purpose should be?
Do you believe that there is an age after which most people should not be allowed in certain positions? What type of positions? What age would you decide to appropriate for removing these people from the position? How would you decide?
Class discussion will be full of perceptions and biases; make sure to question each response in order to determine whether age is actually the deciding factor here, or health, or eyesight, and so on.
Western Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985)
Issue: Whether age is a BFOQ for the position of flight engineer?
Facts: Western Air Lines requires that its flight engineers, who are members of the cockpit crew but do not operate flight controls unless both the pilot and co-pilot become incapacitated, retire at age 60. The Federal Aviation Administration prohibits anyone form acting as a pilot or copilot after they have reached the age of 60. The respondents in this case include both pilots who were denied reassignment to the position of flight engineers at age 60 and flight engineers who were forced to retire at that age. The airline argued that the age-60 retirement requirement is a BFOQ reasonably necessary to the safe operation of the business. The lower court instructed the jury as follows: the airline could only establish age as a BFOQ if "it was highly impractical for [petitioner] to deal with each [flight engineer] over age 60 on an individualized basis to determine his particular ability to perform his job safely" and that some flight engineers "over 60 possess traits of a physiological, psychological or other nature which preclude safe and efficient job performance that cannot be ascertained by means other than knowing their age." The Supreme Court evaluated whether this instruction was appropriate and determined that it correctly stated the law.
Decision: The actual capabilities of persons over age 60, and the ability to detect diseases or a precipitous decline in their faculties, were the subject of conflicting medical testimony. Throughout the legislative history of the ADEA, one empirical facts is repeatedly emphasized: the process of psychological and physiological degeneration caused by aging varies with each individual. As a result, many older workers perform at levels equal or superior to their younger colleagues. In fact, in 1965, the Secretary of Labor reported to Congress that despite these well-established medical facts, "there is persistent and widespread use of age limits in hiring that in a great many cases can be attributed only to arbitrary discrimination against older workers on the basis of age and regardless of ability." The court discusses Usery v. Tamiami Trail Tours where the Fifth Circuit held that "the job qualifications which the employer invokes to justify his discrimination must be reasonably necessary to the essence of his business - here, the safe transportation of bus passengers from one point to another. The greater the safety factor, measured by the likelihood of harm and the probably severity of that harm in case of an accident, the more stringent may be the job qualifications designed to insure safe driving."
The BFOQ standard adopted in the statute is one of "reasonable necessity," not reasonableness. When an employer establishes that a job qualification has been carefully formulated to respond to documented concerns for public safety, it will not be overly burdensome to persuade a trier of fact that the qualification is "reasonably necessary" to safe operation of the business. Thus, the court held that the instructions to the trial court were correct.
Case Questions 1. What is the difference between the two cases cited in full above? What is the basis for the determination that an employer should or should not be required to test applicants on an individual basis?
The TWA case addressed the specific issue of TWA's policy of exclusion based on a seniority system while the Western case addressed the proper standard for determining whether age was a BFOQ for a specific position. In order to determine whether the employer should have to test applicants on an individualized basis is whether the abilities or decline in faculties are able to be tested on an individual basis and the level of public safety at risk.
2. Should an employer have available as a defense that the cost of the tests would impose a great burden on the employer? Why or why not?
Discuss with the class where the burden should fall; if we allow the employer not test and hire older workers because the tests are too expensive and the risks too great if they hire the worker without the tests, then the burden of maintaining this individual falls on society instead of the employer. It is a balancing of costs to society issue.
3. What is the distinction the Criswell opinion makes between "reasonable necessity" and "reasonableness?"
Plenty of things may seem reasonable but not necessary.
Lecture Note: We are talking here about whether there exist generally accepted qualities of an older person. Can I say that the eyesight of all older workers is poor? Not really, but if eyesight is critical, wouldn't I have a better chance for good eyes if I hired younger workers, and then I could save on eye exams?