The Catholic University of America

Summary of Federal Laws

Employment

Equal Employment Opportunity

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Equal Opporturnity
 

Age Discrimination in Employment Act of 1967 (ADEA) (part of the Fair Labor Standards Act of 1938) 29 U.S.C. § 621 et seq.; 29 C.F.R. Part 1625.1 et seq.

Prohibits employment discrimination based on age with respect to persons who are at least 40 years of age. As of January 1, 1994, mandatory retirement for faculty, whether tenured or not, is unlawful. Exemption for high level managers in bona fide executive or high policy making positions. The ADEA was amended by Pub. L. No. 104-208, § 119, 110 Stat. 3009 (1996). The amendment restores the public safety exemption, thus allowing police and fire departments to use maximum hiring and mandatory retirement ages. See 29 U.S.C. § 623(j)(1). Does not per se prohibit the asking of age or date of birth on a job application, but indicates that such action will be closely scrutinized for legitimate business purpose.

Section 941 of the Higher Education Amendments of 1998 amends the ADEA by allowing institutions of higher education to offer tenured faculty voluntary early retirement incentive plans that are in part age-based. Safe harbor provisions require that the supplemental age-based benefits must be in addition to retirement or severance benefits offered generally to tenured faculty, independent of an early retirement plan offered in the preceding 365 days. An 180-day election period is required. The effective date is October 1, 1998, and does not affect a cause of action that arose prior to that date.

Recordkeeping: See 29 C.F.R. § 1627.3.

For three years:

  • Payroll records containing name, address, date of birth, occupation, rate of pay, and compensation earned each week.

For one year:

  • Job applications, résumés and any other form of employment inquiry submitted in connection with job openings, as well as records pertaining to the failure to hire an individual.

  • Promotion, demotion, transfer, training selection, layoff, recall or discharge records.

  • Job orders submitted to an employment agency or labor organization for recruitment of personnel.

  • Test papers completed by applicants which disclose the results of employment tests.

  • The results of physical exams considered by the employer in connection with any personnel action.

  • Any ads or notices to the public or employees relating to job openings, promotions, training programs, or opportunities for overtime work.

For the term of the plan, and at least one year after termination of the plan:

Any employee benefit plans such as pension and insurance plans, as well as copies of any seniority systems and merit systems which are in writing.. If the plan or system is not in writing, a memorandum fully outlining the terms of such plan or system and the manner in which it has been communicated to the affected employees, together with notations relating to changes or revisions.

Posting: See 29 C.F.R. § 1627.10. A summary of the law's provisions must be posted in prominent and accessible places where it can be observed by employees, applicants and union members. The required notice is available from the EEOC.

Disparate Impact and Reasonable Factors Other Than Age Under the Age Discrimination in Employment Act, 77 Fed. Reg. 19080, March 30, 2012, Final Rule, Effective April 30, 2012.

This final rule clarifies how an employer can defend against a claim of disparate impact (not treatment) on the basis of age. The employer must show the employment practice is based upon a reasonable factor other than age. The employer bears the burden of production and persuasion to demonstrate the defense. An RFOA is a non-age factor that is objectively reasonable when viewed from the position of a prudent employer mindful of its responsibilities under the ADEA. The practice must be reasonably designed to further or achieve a legitimate business purpose in light of the facts and circumstances. The amended regulation at 29 CFR 1625.7 lists considerations that are relevant. The extent to which the employer defined the factor accurately and the extent to which guidance and training was given to managers is relevant. See the Miller and Martin article on 5/2/12 titled "What is a Reasonable Factor Other than Age as Now defined by the EEOC?"

 

Waiver of ADEA Claims: EEOC final regulations

On Dec. 11, 2000, the EEOC issued final regulations on what constitutes a valid ADEA waiver. See 65 Fed. Reg. 77437. This document contains guidance to employers drafting waiver provisions. The regulations state that a person who challenges a waiver or covenant not to sue need not tender back consideration before filing a lawsuit or EEOC charge. The waivers may not provide for employer recovery of costs, attorney fees or damages when an employee sues under the ADEA, although employers may recover same when claims are filed in bad faith. The issue of severability for an invalid provision is touched upon, but not decided. In part the final regulations state " The Commission believes, however, that contrary to the position advanced by the employer, there is a strong argument that inclusion of an invalid provision in an ADEA waiver agreement-- such as a tender back clause or a damages provision--should invalidate the entire waiver." The regulations are effective Jan. 10, 2001.


Selected Case Law Under ADEA

Resources

EEOC Fact Sheet: Facts about Age Discrimination

EEOC Laws and Guidance Page (includes Age)

NACUA Outline # X-06-06-3 Current Issues in Age Discrimination by Jill Rosenberg & Gerald Skoning (2006 Annual Conference)

 

 

 

 

 

 

updated by mlo to add 77 FR 19080, may 10, 2102