The Age Discrimination in Employment Act - Essay Example

Table of Contents Page(s) Topic(s) 0 Table of Contents 3 Introduction Age Discrimination Apprenticeship Programs Job Notes and Advertisements Pre-Employment Inquiries Benefits Waivers of ADEA Rights 4.5 Statistics for Fiscal Years 1992-2004 6.7 Definitions of Terms from US EEOC (pg. 7-8) Administrative Closure Merit Resolutions No Reasonable Cause Reasonable Cause Settlements (Negotiated) Successful Conciliation Unsuccessful Conciliation Withdrawal with Benefits 7.11 Court Cases w/ summaries EOC v. Arabian American Oil Co. et. al. (Supreme Court) "High court ruling seen favoring older workers"-MSNBC.com & AP Cases outside of the Supreme Court 1. Yahoo! Finance on 3M Company litigation. 11 Federal and State Equal Opportunity Laws 1. Description (A) Coverage (B) Requirements 12.13 Further Legal Examples Article from HR-Guide.com 13. Fact Sheet from Chairman of US Senate-Govt. Affairs 14. Works Cited Page/Bibliography The Age Discrimination in Employment Act Introduction When a person gets to a certain age, it can often be desired, or felt that they have reached what is commonly referred to as the point in their life where they begin to no longer feel like they have anything to prove to anyone. Unfortunately for some, it is only just the beginning. In the world which we live in, youth is seen as a sign of immaturity and a lack of experience, while to those who have experienced it firsthand, age often times can also be seen as a downside by a perspective employer or others around them as well. While younger persons can also be stigmatized by their age, those who are older more commonly feel it. That is why Congress first passed in 1967 what has come to be known as The Age Discrimination in Employment Act of 1967, with subsequent amendments and ruling which would follow as the years passed. Age Discrimination According to the online page for The U.S. Equal Employment Opportunity Commission, it has this to say about the congressional act, "The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training," (Equal Employment #1). In understanding this law, it is crucial to understand the facts behind it. According to this group, this act covers employers who have 20 or more employees, and also happens to cover both state and local governments. The group goes on to say that the protections for such persons under the act are as such: Apprenticeship Programs "It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption." Job Notices and Advertisements "The ADEA generally makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. A job notice or advertisement may specify an age limit only in the rare circumstances where age is shown to be a "bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of the business." Pre-Employment Inquiries "The ADEA does not specifically prohibit an employer from asking an applicant's age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA." Benefits The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers, and that those greater costs would create a disincentive to hire older workers. Therefore, in limited circumstances, an employer may be permitted to reduce benefits based on age, as long as the cost of providing the reduced benefits to older workers is the same as the cost of providing benefits to younger workers. As is everything else in life, in the case of this act there is also a section in which it details the situation(s) in which an employer can bypass traditional participation in this act, and go through some other means. In this instance, The US Equal Employment Opportunity Commission details such things have to be done in order for what's called a 'waiver' to be given. In a separate category title Waivers of ADEA Rights, the commission writes, "An employer may ask an employee to waive his/her rights or claims under the ADEA either in the settlement of an ADEA administrative or court claim or in connection with an exit incentive program or other employment termination program. However, the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver must: 1. Be in writing and be understandable; 2. Specifically refer to ADEA rights or claims; 3. Not waive rights or claims that may arise in the future; 4. Be in exchange for valuable consideration; 5. Advise the individual in writing to consult an attorney before signing the waiver; and 6. Provide the individual with 21 days to consider the agreement and at least seven days to revoke the agreement after signing it. Further tellingly, at the end it says that, "If an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive," (Equal Employment #2). Statistics #3 A good way to truly understand an issue is to be able to look at the statistics surrounding it. The US Equal Employment Opportunity Commission provides these statistics from fiscal years 1992-2004 through a hyperlink at the bottom of the previous page: FY 1992 FY 1993 FY 1994 FY 1995 FY 1996 FY 1997 FY 1998 FY 1999 FY 2000 FY 2001 FY 2002 FY 2003 FY 2004 Receipts 19,573 19,809 19,618 17,416 15,719 15,785 15,191 14,141 16,008 17,405 19,921 19,124 17,837 Resolutions 19,975 19,761 13,942 17,033 17,699 18,279 15,995 15,448 14,672 15,155 18,673 17,352 15,792 Resolutions By Type Settlements 963 774 585 571 452 642 755 816 1,156 1,006 1,222 1,285 1,377 4.8% 3.9% 4.2% 3.4% 2.6% 3.5% 4.7% 5.3% 7.9% 6.6% 6.5% 7.4% 8.7% Withdrawals w/Benefits 1,537 1,197 990 856 671 762 580 578 560 551 671 710 787 7.7% 6.1% 7.1% 5.0% 3.8% 4.2% 3.6% 3.7% 3.8% 3.6% 3.6% 4.1% 5.0% Administrative Closures 4,957 5,556 5,021 6,571 5,028 4,986 4,175 3,601 3,232 3,963 6,254 2,824 3,550 24.8% 28.1% 36.0% 38.6% 28.4% 27.3% 26.1% 23.3% 22.0% 26.1% 33.5% 16.3% 22.5% No Reasonable Cause 12,075 11,481 6,872 8,309 11,081 11,163 9,863 9,172 8,517 8,388 9,725 11,976 9,563 60.5% 58.1% 49.3% 48.8% 62.6% 61.1% 61.7% 59.4% 58.0% 55.3% 52.1% 69.0% 60.6% Reasonable Cause 443 753 474 726 467 726 622 1,281 1,207 1,247 801 557 515 2.2% 3.8% 3.4% 4.3% 2.6% 4.0% 3.9% 8.3% 8.2% 8.2% 4.3% 3.2% 3.3% Successful Conciliation's 121 147 97 52 96 74 119 184 241 409 208 166 139 0.6% 0.7% 0.7% 0.3% 0.5% 0.4% 0.7% 1.2% 1.6% 2.7% 1.1% 1.0% 0.9% Unsuccessful Conciliation's 322 606 377 674 371 652 503 1,097 966 838 593 391 376 1.6% 3.1% 2.7% 4.0% 2.1% 3.6% 3.1% 7.1% 6.6% 5.5% 3.2% 2.3% 2.4% Merit Resolutions 2,943 2,724 2,049 2,153 1,590 2,130 1,957 2,675 2,923 2,804 2,694 2,552 2,679 14.7% 13.8% 14.7% 12.6% 9.0% 11.7% 12.2% 17.3% 19.9% 18.5% 14.4% 14.7% 17.0% Monetary Benefits (Millions)* $57.3 $40.7 $42.3 $29.4 $31.5 $44.3 $34.7 $38.6 $45.2 $53.7 $55.7 $48.9 $69.0 * Does not include monetary benefits obtained through litigation. The total of individual percentages may not always sum to 100% due to rounding. EEOC total workload includes charges carried over from previous fiscal years, new charge receipts and charges transferred to EEOC from Fair Employment Practice Agencies (FEPAs). Resolution of charges each year may therefore exceed receipts for that year because workload being resolved is drawn from a combination of pending, new receipts and FEPA transfer charges rather than from new charges only. (Equal Employment Statistics). Definitions of Terms: (Given by The US Equal Employment Opportunity Commission) Source #4. Administrative Closure Charge closed for administrative reasons, which include: failure to locate charging party, charging party failed to respond to EEOC communications, charging party refused to accept full relief, closed due to the outcome of related litigation which establishes a precedent that makes further processing of the charge futile, charging party requests withdrawal of a charge without receiving benefits or having resolved the issue, no statutory jurisdiction. Merit Resolutions Charges with outcomes favorable to charging parties and/or charges with meritorious allegations. These include negotiated settlements, withdrawals with benefits, successful conciliation's, and unsuccessful conciliation's. No Reasonable Cause EEOC's determination of no reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. The charging party may exercise the right to bring private court action. Reasonable Cause EEOC's determination of reasonable cause to believe that discrimination occurred based upon evidence obtained in investigation. Reasonable cause determinations are generally followed by efforts to conciliate the discriminatory issues, which gave rise to the initial charge. NOTE: Some reasonable cause findings are resolved through negotiated settlements, withdrawals with benefits, and other types of resolutions, which are not characterized as either successful or unsuccessful conciliation's. Settlements (Negotiated) Charges settled with benefits to the charging party as warranted by evidence of record. In such cases, EEOC and/or a FEPA is a party to the settlement agreement between the charging party and the respondent (an employer, union, or other entity covered by EEOC-enforced statutes). Successful Conciliation Charge with reasonable cause determination closed after successful conciliation. Successful conciliation's result in substantial relief to the charging party and all others adversely affected by the discrimination. Unsuccessful Conciliation Charge with reasonable cause determination closed after efforts to conciliate the charge are unsuccessful. Pursuant to Commission policy, the field office will close the charge and review it for litigation consideration. NOTE: Because "reasonable cause" has been found, this is considered a merit resolution. Withdrawal with Benefits Charge is withdrawn by charging party upon receipt of desired benefits. The withdrawal may take place after a settlement or after the respondent grants the appropriate benefit to the charging party. Court Cases #5 The next thing to observe is any court cases that would have been filed under this act. After accessing the Legal Information Institute web page through Cornell University, multiple Supreme Court cases having to do with The US Equal Employment Opportunity Act of 1967 show up. An example of a case with a brief explanation: EMPLOYMENT OPPORTUNITY COMMISSION v. ARABIAN AMERICAN OIL CO. et al. Certiorari to the united states court of appeals for the fifth circuit No. 89-1838. Argued January 16, 1991 -- Decided March 26, 1991 Summary of the Case Petitioner Boureslan, a naturalized United States citizen born in Lebanon and working in Saudi Arabia, was discharged by his employer, respond- ent Arabian American Oil Company, a Delaware corporation. After filing a charge with petitioner Equal Employment Opportunity Commis- sion (EEOC), he instituted suit in the District Court, seeking relief under, inter alia, Title VII of the Civil Rights Act of 1964, on the ground that he had been discriminated against because of his race, religion, and national origin. In dismissing this claim, the court ruled that it lacked subject-matter jurisdiction because Title VII's protections do not extend to United States citizens employed abroad by American employers. The Court of Appeals affirmed. (b) Petitioners also argue unpersuasively that Title VII's "alien ex- emption" clause -- which renders the statute inapplicable "to an employer with respect to the employment of aliens outside any State" -- clearly manifests the necessary congressional intent to cover employers of United States citizens working abroad. If petitioners were correct, there would be no statutory basis for distinguishing between American employers and foreign employers. Absent clearer evidence of congres- sional intent, this Court is unwilling to ascribe to Congress a policy which would raise difficult international law issues by imposing this country's employment-discrimination regime upon foreign corporations operating in foreign commerce. This conclusion is fortified by other fac- tors suggesting a purely domestic focus, including Title VII's failure even to mention foreign nations or proceedings despite a number of pro- visions indicating a concern that the sovereignty and laws of States not be unduly interfered with, and the Act's failure to provide any mecha- nisms for its overseas enforcement. It is also reasonable to conclude that had Congress intended Title VII to apply overseas, it would have addressed the subject of conflicts with foreign laws and procedures, as it did in amending the Age Discrimination in Employment Act of 1967 (ADEA) to apply abroad. Pp. 8-11. (c) Congress' awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occa- sions on which it has legislated extraterritoriality, including its amendment of the ADEA. Congress may similarly amend Title VII and in doing so will be able to calibrate its provisions in a way that this Court cannot. Pp. 12-14. 892 F. 2d 1271, affirmed. Rehnquist, C. J., delivered the opinion of the Court, in which White, O'Connor, Kennedy, and Souter, JJ., joined. Scalia, J., filed an opin- ion concurring in part and concurring in the judgment. Marshall, J., filed a dissenting opinion, in which Blackmun and Stevens, JJ., joined. (Legal Information Institute EOC v. AAOC et.al). Non-Supreme Court Cases #6 According to an article in Yahoo! Finance, other cases are going on not just in the Supreme Court level. Dated 11/2/05 it reports, "Current and former employees of 3M Company (NYSE: MMM - News) have broadened the scope of age discrimination litigation against the Minnesota-based corporation by filing a class action lawsuit in New Jersey and charges of discrimination with the federal Equal Employment Opportunity Commission ("EEOC"), according to their attorneys at Sprenger & Lang. In December 2004, a current and a former 3M employee filed a class action age discrimination lawsuit against 3M in state court in St. Paul, Minnesota, alleging violations of the Minnesota Human Rights Act. The proposed class in that case consists of between 5,000 and 10,000 current and former salaried employees who have worked in the State of Minnesota, where about half of 3M's United States workforce is located, and who did not sign releases of claims when their employment was terminated. The article gives greater detail about other cases, which were filed by employees of this company. According to Michael Lieder, who is a partner with the firm of Sprenger & Lang, "We believe that 3M engaged in a concerted effort to disadvantage and terminate its older employees and that 3M's discrimination was directed and encouraged by high-level employees in its corporate headquarters. Because of this, we expect to see consistent patterns of discrimination throughout 3M locations in the United States. As we continue to receive contacts from current and former employees, we anticipate filing other actions in other states throughout the country, as well as additional EEOC charges." Going on to write that, "Sprenger & Lang is working with the litigation section of the AARP Foundation on the Minnesota case and the federal charges, and the Newark-based law firm of Reitman Parsonnet P.C. on the New Jersey case," (Yahoo! Finance 11/02/05 #6). "High court ruling seen favoring older workers"#7-March 30, 2005 In this story MSNBC.com and the AP report that, "The Supreme Court made it easier Wednesday for any worker over 40 to allege age discrimination, ruling that employers can be held liable even if they never intended any harm. About 75 million people - roughly half the nation's work force - are covered by the decision. However, the unanimous ruling makes it clear that older workers will have a high threshold to prove their claims," Alarmingly the article reveals this key point regarding the opinion of a key judge. The news piece states that according to long time justice John Paul Stevens, in his written opinion on the matter, "in some cases employers are within their rights to treat workers differently because of age," ('High Court' 3/30/05 #7). Federal and State Equal Employment Opportunity Laws (#8) This PDF document states that "Title VII of the Civil Rights Act of 1964 as ammended by the Equal Employment Opportunity Act (1972), The Pregnancy Discrimination Act (1978), and the Civil Rights Act of 1991." The section under which employment is addressed begins with, "Age Discrimination in Employment Act of 1967 as ammended May 1, 1974." Goes into greater detail about things such as: Covered Any employer with 20 or more employees who work 20 or more calendar weeks in a year. Covers federal, state, and local governments. Requirements Neither employer nor employer's representatives may 'fail, refuse, to hire or discharge any individual or otherwise discriminate with respect to his compensation, terms, conditions or privileges of employment because of such individuals age. Summary Thus Far of Material Thus far, it can be summarized that the issue of Age Discrimination of those in the work place based on their age is an ongoing issue, and a crucial one at that. To be judged by age and not documented experience is to show a lack of appreciation for what age can offer. Those who are of an older generation can provide invaluable input in business practices and societal trends of the past generations, while their younger counterparts are locked into having a rather limited sense of understanding specific factors of life which ultimately come as one ages. The Equal Employment Act of 1967, and the subsequent amendments to it over the years, formed a goal which set out to protect the elder members of the human race from prejudice and degradation as the result of being told through words, as well as actions, that they're "too old". Otherwise meaning that they are no longer viable contributors to the work force because they have ascended to the next chapter in their life path. When a person is young, it is generally taught that they are supposed to 'respect their elders', or something close to that. In looking at that term, wouldn't it seem necessary, if not simple to understand, that the act of showing respect to someone of an advance age over you would also apply to a situation like the work force It seems incomprehensible that to be taught to respect your elders as a young person, but to show total disregard and lack of respect in the professional world, it almost seems like there is a double standard to the above mentioned statement. According to some, the idea of respect to those of age doesn't apply in the everyday business of the professional world. Any logical person with a sense of reason would see that to respect a person of more age, it is imperative that double standards are not put into place, and these people are not boxed into unfair categories in the lines of work that they so choose to be in. Further Legal Examples #9 An article from the website HR-Guide.com details some of the same information pertaining to the ADEA that has already been mentioned, but also gives greater detail about what an employer is prohibited in doing. It states, "The ADEA bars employers, employment agencies and labor organizations from discriminating against one who has opposed any practices made unlawful by the Act. Discrimination against one who has filed a charge, testified, or assisted or participated in an investigation or suit under the Act is also prohibited. 29 U.S.C. 623(d). In EEOC v. Cosmair, Inc., L'Oreal Hair Care Division, 821 F.2d 1085 (5th Cir. 1987) the court found that it was unlawful retaliation to discontinue severance payments to a former employee who had signed a release, when he subsequently filed a discrimination charge with the EEOC. The court found that a release of the right to file an EEOC claim is void as against public policy. In EEOC v. Board of Governors of State College, 957 F.2d 424 (7th Cir. 1992) the court found it was retaliation for a state university to discontinue processing grievances through its collectively bargained grievance procedure for employees who had also filed charges with the EEOC. (See also Williams v. Bristol-Myers Scribb Co., 85 F.3d 270 (7th Cir. 1996) where the court held it was a jury question whether the plaintiff was fired for falsification of records or in retaliation for having testified in a co-worker's age discrimination suit.) Going into monetary means, the article later addresses the following under the category of Exemptions From Coverage Under The ADEA. Second paragraph of this category stipulates that, "The ADEA exempts "bona fide executives or high policy makers" who are not less than 65 years of age and who have held such a position for at least two years immediately before retirement. 26 U.S.C. 631(c). To be exempt such an employee must also be immediately entitled to a non-forgettable annual retirement benefit of at least $44,000." Fact Sheet from Chairman of US Senate-Government Affairs #10 Located in the brief, a summary is given of the monetary awards issued as the result of Federal EEO Cases. The reports states that even though exact monetary figures are not accessible to them a that point, they are comfortable in reporting that the sum of $87.4 million was paid from both federal agencies, as well as the judgement fund to employees who filed claims under equal opportunity rights. Works Cited 1. Age Discrimination. The US Equal Employment Opportunity Commission http://www.eeoc.gov/types/age.html 2. Protections that Apply. The US Equal Employment Opportunity Commission http://www.eeoc.gov/types/age.html 3. Statistics. Age Discrimination in Employment Act (ADEA) Charges FY 1992- FY 2004. The US. Equal Employment Opportunity Commission http://www.eeoc.gov/stats/adea.html 4. Definitions of Terms. The US Equal Employment Opportunity Commission http://www.eeoc.gov/stats/define.html 5. EMPLOYMENT OPPORTUNITY COMMISSION v. ARABIAN AMERICAN OIL CO. et al. Legal Information Institute (LII) http://neuro.law.cornell.edu/supct/search/search.html 6. "Employees Represented by Sprenger & Lang Expand Age Discrimination Claims Against 3M." Yahoo! Finance. http://biz.yahoo.com/bw/051102/25741.html.v=1 7. "High court ruling seen favoring older workers" MSNBC.com w/ AP reporting. http://www.msnbc.msn.com/id/7335965/ 8. Federal and State Equal Employment Opportunity Laws (PDF document) www.dhhs.state.nc.us/humanresources/harrassment/EEO_law_summary.pdf 9. Age Discrimination in Employment Act. Written by Donald J. Spero, Esq. http://www.hr-guide.com/data/A07301.htm 10. Discrimination Complaints: Monetary Awards in Federal EEO Cases United States General Accounting Office. Fact sheet for the Chairman, Committee on Government Affairs, U.S. Senate www.gao.gov/archive/1995/gg95028f.pdf Read More