AGE
DISCRIMINATION
The
Age Discrimination in Employment Act covers private employers of 20 or more
persons as well as state and local governments, employment agencies serving
covered employers, and labor unions with 25 or more members. Age Discrimination in Employment Act of 1967 '
2 et seq., 29 U.S.C.A. '
621 et seq. Under
ADEA, employers are forbidden to:
1.
Fail or refuse to hire, to discharge, or other discriminate against
any individual with respect to compensation, terms, conditions, or
privileges of employment because of such individual=s
age;
2.
Limit, segregate, or classify an employee in any way that would
deprive the employee of job opportunities or adversely affect employment
status because of age;
3.
Reduce the wage rate of an employee in order to comply with the Act;
4.
Indicate any preference, limitation, specification, or discrimination
based on age in any notices or advertisements for employment; and
5.
Operate a senior system or employee benefit plan that requires or
permits involuntary retirement.
An employer can
defend itself against an age discrimination charge by showing that age is a
bona fide occupational qualification for a particular job.
HELP
WANTED NOTICES
Help wanted notices
or advertisements that contain terms that deter the employment of older
persons are prohibited. Examples
of such terms or phrases include: Aage 25-35,@
Ayoung,@
Acollege student,@
Arecent
college graduate,@
Aboy@ or Agirl.@ Other phrases such as A40-50,@
Aage over 65,@
Aretired
person,@ or
Asupplement your pension@ discriminate against others in the
protected age group, i.e., 40 or older, and are therefore not permissible
either.
EMPLOYMENT
APPLICATIONS
Asking for date of
birth or age on a job application form does not, by itself, violate ADEA.
But, as in the case of help wanted ads, such a request could deter older
persons from applying, and therefore will be closely scrutinized to insure a
lawful purpose. An employer should
make clear on the job application that the purpose for requesting the
information is not prohibited under the law.
For example, the application could state: AThe
Age Discrimination in Employment Act of 1967 prohibits discrimination on the
basis of age with respect to individuals who are at least 40 years of age,@
or some similar phrase indicating that age information will not be used
unlawfully.
UNLAWFUL
DISCHARGES
Employees age 40 and
over are protected by ADEA from adverse personnel actions and are based on age
rather than performance. Moreover,
an employer=s
cost-cutting modem is not, in itself, a justifiable reason for discharging or
demoting an older worker. For
example, a discharged employee in the protected age group is entitled to recover
under ADEA if the worker=s
age made Aa
difference@
in the employer=s
termination decision, the U.S. Court of Appeals at San Francisco decided,
upholding a $2.3 million age discrimination jury award.
The court concluded that there may more than one factor in a decision to
terminate an older worker, but the employer has violated ADEA if age is a factor
that made a difference in the employment decision.
Cancellier v. Federated Department Stores, 28 FEP 1151, cert.
denied, 31 FEP 704.
Cost-cutting is not a
legitimate, non-discriminatory reason for discharging an older employee while
retaining younger, lower paid employees. Metz
v. Transit Mix, 44 FEP 1339. However, employment decisions during a reorganization and
cutback in part based on high salary are not necessarily age bias.
The court reasoned that high salary and age may be related, but so long
as the employer=s
decision views each employee individually, no general rule that disparately
impacts on older workers is imposed, and decisions are based solely on financial
considerations, ADEA is not violated. Bay v. Times Mirror Magazines, 56 FEP 407.
LAYOFFS
AND SEVERANCE PAY
In paying severance
benefits to employees when layoffs occur, employers must face the problem of how
to handle employees who are eligible for pensions without violating ADEA.
Andrew
S. Williams
Aronberg Goldgehn Davis & Garmisa
One IBM Plaza, Suite 3000
Chicago, Illinois 60611
312/755-3145
awilliams@agdglaw.com
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