The law

• Author: Cathy Ventrell-Monsees
• Pages: 29-80

THE LAW

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CHAPTER 1

THE LAW

I. INTRODUCTION

§1:10 Trends in Age Discrimination

§1:10.10 Impact of Baby Boomers

§1:10.20 Trends in Age Discrimination Charges and Litigation

§1:10.30 Trends in Supreme Court ADEA Decisions

§1:20 Costs of Age Discrimination

§1:30 Historical Overview

§1:40 Comparing ADEA and Title VII

§1:40.10 Coverage and Procedural Differences

§1:40.20 Differences in Methods of Proof

§1:40.30 ADEA Employer Defenses Not Found in Title VII

§1:40.40 Differences in Remedies Between ADEA and Title VII

§1:50 ADEA Enforced by Equal Employment Opportunity Commission

II. WHO IS COVERED?

§1:60 Generally

§1:70 “Employer” Def‌ined

§1:70.10 Twenty-Employee Threshold

§1:70.10.10 Joint Employer Issues

§1:70.20 States, Political Subdivisions, Legislative Bodies

§1:70.20.10 Twenty-Employee Threshold Applies to Private Employers Only

§1:70.20.20 Sovereign Immunity Issues

§1:70.20.20.10 Municipal Employers Subject to Private ADEA Suits

§1:70.20.20.20 EEOC May Sue State Employers

for Damages Under ADEA

§1:70.20.30 Suits for Damages Against State Decision-Makers

§1:70.20.40 §1983 Claim

§1:70.20.50 State Licensing and Regulatory Agencies

§1:70.20.60 Legislative Immunity

§1:70.30 [Reserved]

§1:70.40 Foreign Employers, Foreign Decision-Making and Work Stations

§1:70.40.10 Determining Who Is a U.S. Employer

§1:70.40.20 Determining Whether a Company Is “Controlled By” a U.S. Employer

§1:70.40.30 Foreign Laws Defense

§1:70.50 Labor Unions and Organizations

§1:70.60 Agents and Employment Agencies

THE LAW

AGE DISCRIMINATION LITIGATION 12

§1:70.70 Religious Organizations

§1:70.70.10 Ministerial Exception

§1:70.80 Membership Organizations and Associations

§1:70.90 Native American Tribes and Immunity

§1:80 “Employee” Def‌ined

§1:80.10 In General

§1:80.20 Independent Contractors

§1:80.30 Partners

§1:80.40 Shareholders and Owners

§1:80.50 Physicians

§1:80.60 Personal Staff Exemption

§1:80.70 Military Employees

§1:80.80 Interns

§1:80.90 Federal Employees

§1:90 Retirees

III. ACTS PROHIBITED

§1:100 Adverse Actions

§1:110 Favoring Older Employees Not Prohibited

§1:120 Recruitment and Hiring

§1:120.10 Advertising

§1:120.20 Disparate Impact Claims by Applicants

§1:120.30 Union Apprenticeship Programs & BFOQ Defense

§1:130 Terminations, Constructive Discharge, and Reductions in Force (RIFs)

§1:130.10 Terminations

§1:130.20 Constructive Discharge

§1:130.20.10 Constructive Discharge Driven by Harassment

§1:130.20.20 Negative Evaluations After Years of Good Performance

§1:130.30 Reductions In Force

§1:130.30.10 Obtain Age Data and Other Information

§1:140 ADEA Exceptions Permitting Mandatory Retirement

§1:150 Demotions

§1:160 Transfers

§1:170 Pay Discrimination

§1:180 Harassment/Hostile Work Environment

§1:190 Benef‌its Discrimination

§1:190.10 Overview

§1:190.20 Prima Facie Case: Unequal Benef‌its

§1:190.20.10 Facially Discriminatory Plans State a Claim of Disparate Treatment

§1:190.20.20 Hazen Paper “Age-Proxy” Analysis Does Not

Apply to Facially Discriminatory Benef‌it Plans

§1:190.20.30 Special Cases Involving Years of Service

§1.190.20.40 Minimum Eligibility Ages Are Permissible

§1:190.30 Aff‌irmative Defenses for Discriminator y Benef‌it Plans

§1.190.30.10 Equal Cost Aff‌irmative Defense

§1.190.30.20 Early Retirement Incentive Aff‌irmative Defense

§1:190.40 Pension Credits and Accruals

§1:190.50 Conversions to Cash Balance Plans

§1:190.60 Severance Offset of Retiree Health or Pension Enhancements

§1:190.70 Disabilit y Benef‌its

§1:190.80 Health Benef‌its

§1:190.80.10 EEOC Exemption of Retiree Health Benef‌its

§1:190.90 Life Insurance Benef‌it Plans

THE LAW

13 THE LAW

IV. EMPLOYER RETALIATION

§1:200 In General

§1:200.10 ADEA Follows Title VII Pattern of Proof for Retaliation Claims

§1:210 Two Types of Protected Activity

§1:210.10 Facilitating or Participating in ADEA Enforcement (“Participation Activity”)

§1:210.20 Opposing Employer’s Discriminatory Practices (“Opposition Activity”)

§1:220 What Constitutes A “Material Adverse Action”

§1:220.10 Examples of Materially Adverse Action

§1:220.20 Mere Inconvenience Not Actionable

§1:230 What Constitutes “Causation”

§1:230.10 “Causal Link”

§1:230.20 Employer Knowledge of the Protected Activity

§1:230.30 Proximity in Time

[§1:240 – 1:290 Reserved]

V. EMPLOYER DEFENSES

§1:300 Bona Fide Occupational Qualif‌ication

§1:300.10 Two-Pronged Test

§1:300.20 Maximum Hiring Ages

§1:300.30 Mandatory Retirement Ages

§1:310 Reasonable Factors Other Than Age

§1:320 Seniority Systems and Employee Benef‌it Plan Defenses

§1:330 Foreign Workplace Defense

VI. MANDATORY ARBITRATION

§1:340 Supreme Court Favors Arbitration

§1:350 EEOC Not Bound by Private Arbitration Agreement

§1:360 Arbitration Provisions in Severance or Release Agreements