Age Discrimination in the News

Much attention has been giving to the aging of the U.S. Workforce and, while projections vary, estimates are that baby-boomers now comprise nearly 50% of the U.S. labor force.  Not surprisingly and perhaps as a result the issue of age discrimination in the workplace is also getting much attention. 

The U.S. EEOC reported that in FY 2007 it received more age discrimination charges than it had in the three immediately preceding years and the third highest number in the last decade. It also issued more "Reasonable Cause" determinations than it had in the four immediately preceding years.  These trends give rise to a need for business owners, managers and HR professionals to give consideration to employment practices that may give rise to an inference of age-based discrimination.

The federal Age Discrimination in Employment Act (ADEA) covers employers with 20 or more employees and prohibits discrimination against individuals age 40 or above. In 2008, the U.S. Supreme Court has issued no less than five separate determinations related to the rights of individuals to sue their employer for age discrimination under the ADEA.  Here is a quick recap:

• Meacham v. Knolls Atomic Power Laboratory (June 19th) - held that the employer must not only present evidence but also has the burden of proof to show that its reason for taking an adverse employment action was a "reasonable factor other than age."
• Kentucky Retirement Systems v. EEOC (June 19th) - Retirement benefits do not violate the ADEA even though they may provide fewer benefits for certain employees who become disabled after becoming eligible for retirement on the basis of age.
• Gomez-Perez v. Potter (May 27th) - a federal sector employ may assert a claim of retaliation under the ADEA.
• Federal Express Corp. v. Holowecki (February 27th) - an individual's completion of the U.S. EEOC's "Intake Questionnaire" and affidavit constituted the filing of a charge so as to allow for the filing of a civil action even if the employer did not receive notice of that charge.
• Sprint/United Mgmt. Co. v. Mendelsohn (February 26th) - referred to as the "me too" case and held that testimony from a coworker who is not a party to the lawsuit, who worked in a different department and under a different supervisor could be admissible as evidence of age discrimination.

But that's not all.  In 2006 the U.S. Supreme Court held that disparate impact claims are not cognizable under the ADEA with respect to applicants who wish to challenge a company's hiring policies but are available to employees who wish to challenge employment policies. On June 10, 2008, however, the 8th U.S. Circuit Court of Appeals held that an employer's rehire policy constituted an employment rather than a hiring policy such that former employees who were barred from being rehired for a certain period of time could sue under the ADEA for disparate impact. EEOC v. Allstate Insurance Co.

LESSONS LEARNED? The nuances of what constitutes unlawful discrimination based on age continue to be clarified and redefined by our legal system. And those definitions are not always clear.  Before taking an adverse employment action, particularly those that will or will have the potential to impact groups of employees such as a reduction-in-force (RIF), be sure to check the demographics of that employee population.  Don't get caught by the "Oops" factor; disparate impact claims are those that involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another, such as upon individuals age 40 and above.  Even though you had no intent to discriminate, if your employment policy does, in fact, disparately impact one or more protected groups over the others you may have a legal challenge.

STAY TUNED! On March 31st the U.S. EEOC issued proposed regulations in response to the 2006 U.S. Supreme Court decision mentioned above. The notice and comment period ended on May 30th.  Final regulations were then expected to clarify what does/not constitute disparate or adverse impact and who bears the burden of proof for demonstrating that reasonable factors other than age (RFOA) were used. Those regulations, however, may be delayed or modified in light of the U.S. Supreme Court's subsequent decision in Meacham v. Knolls, also described above.

    Hot Hits!! Education Corner

Public Presentations

None Scheduled for July

NEXT WEBCAST!

Wednesday, July23rd, "Association Discrimination: It's Whom You Know" 10:00-11:00 a.m. EST. Did you miss last month's or the 2007 series? They are archived and you can access them from the website as well!

All webcasts are pre-approved by HRCI for 1.0 Strategic credit!

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July's Client Training Programs

"Maintaining an Inclusive Workplace"

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Association Discrimination: It's Whom You Know

The Americans with Disabilities Act (ADA) expressly prohibits, "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." But is an employee protected from discrimination in employment under Title VII of the Civil Rights Act of 1964 because s/he associates with a person of a different race, religion or national origin? The answer?  (You know this by now!)..."It depends."  According to the U.S. EEOC the answer is "Yes."  But all courts are not in agreement. Some have found that claims of association-discrimination are available under Title VII; others have found that such claims are not cognizable.  Want to learn more and what proactive practices you can implement?  Join FiveL Company's next webcast by the same name on July 23rd at 10:00 a.m. EST.  Click here to register.

 Reminder for Maryland Employers

 If you employ any employees who are currently paid the minimum wage, remember that effective July 24th the rate increases from $6.15 to $6.55 per hour. You will also need to update your state minimum wage poster(s) to reflect the new rate.