Chapter 24 - § 24.2 • PROHIBITION AGAINST AGE DISCRIMINATION — LEGAL AUTHORITY, PURPOSE, RULE STATEMENT, PROTECTED CLASS, AND TYPES

• Jurisdiction: Colorado

§ 24.2 • PROHIBITION AGAINST AGE DISCRIMINATION — LEGAL AUTHORITY, PURPOSE, RULE STATEMENT, PROTECTED CLASS, AND TYPES

§ 24.2.1—Legal Authority

Federal law prohibits age discrimination via the Age Discrimination in Employment Act of 1967 (ADEA). ADEA has been amended several times, including in 1974 to extend the protection to government workers, in 1978 to extend protections to age 70, and in 1986 to eliminate the upper age limit.¹ In 1990, the Older Worker Benefit Protection Act (OWBPA) was passed to clarify that differences in benefit plans have to be justified by an actual difference in cost, the use of early retirement programs, and the standards for ADEA waivers.² ADEA is enforced by the Equal Employment Opportunity Commission (EEOC), and EEOC rules and regulations provide substantial guidance.

The elder law attorney should also be alert to possible "benefits discrimination" that may impact the attorney's client. The Employee Retirement Income Security Act of1974 (ERISA), 29 U.S.C. §§ 1001, et seq., prohibits discriminatory practices that impact workers' obtaining or collecting on plan benefits for qualified individuals. Specifically, ERISA § 510 states, "It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan. . . ."³ This provision protects workers from an employer's attempt to interfere with the attainment of rights under ERISA or stop a plan participant from availing himself or herself of rights under ERISA.

Claims for ERISA § 510 violations occur most often when an employer has terminated an employee, and the termination was in anticipation of the employee making a claim under a benefit plan or becoming eligible for benefits under a benefits plan. If the elder employee has an ERISA-covered health or retirement plan with his or her employer, ERISA prohibits the employer from discharging or taking other adverse action against the employee for purposes of avoiding payment of pension benefits or coverage of insurance-covered health conditions.

A wronged applicant or employee may also have a claim under the Equal Protection Clause of the U.S. Constitution.⁴ A claim under the Equal Protection Clause is very limited because it only provides protection from government action, and is only subject to rational basis review (unlike other protected traits that receive a heightened scrutiny review).⁵ In Massachusetts Board of Retirement v. Murgia, the U.S. Supreme Court stated that age is not a suspect or quasi-suspect classification because it does not and has not commanded "extraordinary protection," and held that age distinctions and mandatory retirement ages may be rational.⁶

The Colorado Anti-Discrimination Act (CADA) is found in Title 24, Article 34, Part 4 of the Colorado Revised Statutes.⁷ Other relevant authority includes Part 3 of that same title and article, and the Code of Colorado Regulations.⁸ For all cases arising on or after January 1, 2015, CADA has been amended to significantly expand the available remedies for most discrimination cases; however, the expansion of remedies for age discrimination was limited to those identical to ADEA remedies, which include back pay, front pay, and liquidated damages (the doubling of back pay) for willful violations.⁹

Federal employment discrimination law...