Overview: While the Age Discrimination in Employment Act (ADEA) only protects individuals who are 40 years of age and older from employee discrimination, some state laws, such as those in New York, New Jersey and the District of Columbia, protect individuals who are 18 and older from age discrimination. Age discrimination often arises when individuals receive unfair treatment in the workplace because of the mistaken belief that an older individual will not perform as well. As a result of this, an employer should avoid any preemployment inquiries or employment decisions that are based solely on an individual's age, and be careful about neutral workplace rules and practices that negatively affect older workers. Further, the issue of age discrimination also comes into play when considering the issue of retirement age.
An employer should recognize that it is permissible to differentiate on the basis of age if age is a bona fide occupational qualification. For example, an employer can discriminate based on age if individuals of a certain job cannot perform the essential job functions in a safe manner.
Employers should also be aware of the fact that there are special requirements with regard to the waiver of ADEA claims in settlement agreements and releases under the Older Workers Benefit Protection Act.
Trends: Employers should be aware that the EEOC recently issued a new rule which will make it harder for employers to establish that policies that discriminate based on age were justified based on a legitimate business reason and based on a reasonable factor other than age. It will require employers to show that they have a stated business purpose as well as that the employer considered and sought to reduce the impact of the policy on older workers.
Employers also may reasonably anticipate a greater number of age discrimination lawsuits with the aging Baby Boomer population.
Author: Beth P. Zoller, JD, Legal Editor
The Supreme Court's new term opens today, and several cases with possible implications for employers are on the schedule. Highlights include a dispute involving Michigan's affirmative action ban plus a case that could place hundreds of National Labor Relations Board decisions at risk.
The Arbitration section of the Investigations and Litigation chapter of the Employment Law Manual has been enhanced to include a discussion of several court decisions addressing conflicts between mandatory arbitration programs and either federal or state laws. Employers that use arbitration agreements or mandatory arbitration programs should review this material to ensure their arbitration agreements remain enforceable and that they cover the appropriate causes of action.
The Equal Employment Opportunity Commission (EEOC) has released two informal discussion letters regarding partner-employee coverage under the Age Discrimination in Employment Act (ADEA). Employers should note that enforcement agencies and the courts do not rely blindly on internal labels, job titles or ownership interests when making a determination regarding coverage under equal employment opportunity (EEO) laws.
The 6th Circuit Court of Appeals has ruled that an employee can proceed to trial on his age discrimination claims in a case involving an employer's informal succession plan. In Sharp, a 52-year-old employee was chosen for layoff over a 44-year-old co-worker. The employer contended that the layoff decisions were based on performance, not age.
XpertHR's Financial Services Resource Center for HR helps financial services employers handle their most challenging employment issues by bringing relevant resources together in one place for easy access.
XpertHR has updated two of its state sections, Connecticut and New Jersey, to include further guidance on handling employee "whistleblowers" and to include a major exception to age-discrimination claims. Employers with locations in these states should review the additions to remain compliant with the law and proactive in preventing litigation.
The Supreme Court may soon resolve a split among the appeals courts as to whether filing a charge under the Age Discrimination in Employment Act (ADEA) with the Equal Employment Opportunity Commission (EEOC) is the sole remedy for state and local government employees claiming age discrimination. See Madigan v. Levin, Docket No. 12-872, 2013 U.S. LEXIS 2238 (March 19, 2013). In doing so, it will decide whether the 7th Circuit Court of Appeals was wrong when it held that state and local employees can proceed directly to court on an age discrimination claim based on the equal protection claims under the Fourteenth Amendment via 42 U.S.C. § 1983, (Section 1983) instead of filing an ADEA charge.
On January 28, 2013, the Equal Employment Opportunity Commission (EEOC) released fiscal year 2012 statistics on employment discrimination charges filed with the agency. Retaliation (37,836) was the most frequently filed claim, followed by race discrimination (33,512) and sex discrimination (30,356), which includes sexual harassment and pregnancy discrimination. Retaliation charges remain a top concern for employers and have since 2010, accounting for 38.1% of all charges in 2012.
In Sims v. MVM, Inc., the 11th Circuit Court of Appeals determined that the cat's paw theory of liability does not apply to the Age Discrimination in Employment Act (ADEA).
The 2012 election, the Supreme Court's health care ruling and the infamous fiscal cliff certainly provide plenty of implications for employers. But there were a host of other developments that flew under the radar and merited HR's attention.
HR guidance on policies and practices to combat age discrimination in the workplace.