Total Articles: 17
EEOC Approves New Age Bias Regulation
The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a draft final regulation that clarifies the Age Discrimination in Employment Act's (ADEA) "reasonable factors other than age" test. The new standard will make it easier for workers to establish disparate impact claims and will put a heavier burden on employers in defending such claims.
Amended Regulations on Age Discrimination in Employment Suits Move Closer to Implementation
By a 3-2 vote, the Equal Employment Opportunity Commission at its November 16, 2011, meeting approved amended “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” under the Age Discrimination in Employment Act (“RFOA Regulations”). First proposed on February 18, 2010, these proposed amendments now move to the Office of Management and Budget (“OMB”) for review and interagency coordination.
EEOC to Hold Meeting on Imminent ADEA Rule, Hiring of Disabled Veterans
The Equal Employment Opportunity Commission (EEOC) will hold a public meeting next week to consider draft final regulations on disparate impact and reasonable factors other than age (RFOA) under the Age Discrimination in Employment Act (ADEA), and employment barriers that face disabled veterans. The meeting will take place next Wednesday, November 16, 2011, at 8:30 a.m. ET in the Commission Meeting Room on the First Floor of the EEOC Office Building, 131 “M” Street, NE, Washington, D.C. 20507.
Nielsen Gets Poor Ratings In Age Discrimination Case
An employer can terminate an employee with a track record of performance problems, right? Right, but where the company inconsistently administers discipline and does not follow its own policies, it leaves room for arguments about illegal motivation. In a recent 9th Circuit Court of Appeal decision titled Earl v. Nielsen Media Research, Inc., the court found enough evidence to allow a poorly performing employee to present her case to a jury.
9 signs that you'll lose your age discrimination case
My internet friend and worthy adversary Donna Ballman, an employment lawyer who represents plaintiffs, had a good and sad post this week on AOL this week entitled "Nine Signs of Age Discrimination." The comments were especially depressing, from a number of people who said that they'd experienced age discrimination either in losing their jobs, or in their attempts to find jobs.
'Upsetting the Natural Order': Managing Employees Old Enough to Be Your Parents.
If one looks at the research on older workers -- those who are at or close to retirement age -- one finds what Peter Cappelli, director of Wharton's Center for Human Resources, calls "an incredible amount of discrimination, bigger even than discrimination against race or gender." Older people, he says, often find it difficult to get a job, partly because relatively young supervisors are reluctant to hire and then manage employees who are decades older, even though these employees are the type of worker many employers say they want.
Mandatory Retirement of Law Firm Partners.
In January 2010, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit against the
law firm Kelley Drye and Warren LLP, claiming that its alleged mandatory retirement of partners at age
70 violates the Age Discrimination in Employment Act (ADEA).1 This is not the first law firm to face
claims of age discrimination regarding partners. In 2007, Winston & Strawn LLP settled a suit challenging
various aspects of its alleged decompression policy that reduced partners pay after age 65.2 The same
year, Sidley Austin LLP paid $27.5 million to settle a well-publicized EEOC suit brought on behalf of 32
ex-partners who were de-equitized allegedly on the basis of age.3 In a ruling preceding the settlement,
Judge Richard Posner of the Seventh Circuit found that the EEOC had alleged facts sufficient to show that
the Sidley partners may qualify as employees protected by the ADEA, rather than partners who
would not fall within the Acts coverage because they are employers rather than employees.
EEOC Proposes Guidance on ADEA Defense.
In the wake of two recent U.S. Supreme Court
decisions, the Equal Employment Opportunity
Commission (EEOC) has proposed regulations to
address the scope of the reasonable factors other
than age (RFOA) defense available to employers
under the Age Discrimination in Employment Act
(ADEA).
What Is the Burden of Proof In Age-Discrimination Cases?
In Gross v. FBL Financial Services, Inc., the U.S. Supreme Court ruled that a plaintiff claiming a violation of the ADEA must do more than prove that age was "a motivating factor" in the adverse employment action. Rather, the plaintiff must prove that the action would not have occurred "but for" the employee's age, making ADEA cases harder for plaintiffs to win than other kinds of discrimination cases. Legislation to overturn the Gross case has been introduced and is pending in the Senate and House.
Federal ADEA Update: Company Liable For Discriminatory Hiring Practices Of Third Party Recuiter.
If a company retains an outside recruiter to interview and hire employees on its behalf, can the company be held liable if the recruiter engages in discriminatory practices?
Employer May Be Liable for Hiring Done by Independent Contractor.
The Age Discrimination in Employment Act (ADEA) makes it unlawful to discriminate against an individual over the age of 40, and specifically includes a prohibition against failing to hiring someone based on his or her age. The 2d U.S. Circuit Court of Appeals recently pointed out the expansive nature of that prohibition by holding that an employer may be held liable for discrimination by third parties - including an independent contractor who is authorized by the employer to make hiring decisions on its behalf.
High Court Rules in Several Key Cases Affecting Employers.
Today, the U.S. Supreme Court issued a number of important rulings. Two of these cases arise in the labor and employment law arena and are discussed below.
Supreme Court Finds that Federal Employees Can Bring Age-Based Retaliation Claims.
The U.S. Supreme Court recently held, in a 6-3 decision, that the federal provision of the Age Discrimination in Employment Act (ADEA) prohibits retaliation, even though the language of the statute does not specifically address retaliation. See Gomez-Perez v. Potter (U.S. May 28, 2008). The federal-sector provision of the ADEA provides that [a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age. The key question for the Court in this case was whether the statutory phrase discrimination based on age includes retaliation based on the filing of an age discrimination complaint. The Court held that it does.
Supreme Court Endorses EEOC Definition of "Charge" under ADEA (pdf).
In its second pro-employee decision in two days, the Supreme Court held that a charging party need not fi le
a formal charge with the EEOC to satisfy the administrative charge-fi ling requirement. All that is required is
that the person fi le documents with the EEOC that can be reasonably construed as a request for the agency
to take remedial action to protect the employees rights.
In Federal Express Corp. v. Holowecki, No. 06-1322 (Feb. 27, 2008), four couriers brought a lawsuit
claiming age discrimination in connection with new performance programs rolled out by the company. Only
one of the claimants fi led any papers with the EEOC before fi ling suit. That claimant had submitted an Intake
Questionnaire accompanied by a sworn affi davit that asked the EEOC to please force Federal Express to end
their age discrimination. The company did not receive notice of the claim before suit was fi led. The district
court dismissed the lawsuit but the Second Circuit Court of Appeals reversed. The Supreme Court affi rmed
the court of appeals.
Supreme Court Defers to EEOC in Pleading Case.
For the second consecutive day, the U.S. Supreme Court has issued an important employment law decision. Today, in a 7-2 ruling, the high court held that submitting an "intake questionnaire" and a detailed affidavit to the Equal Employment Opportunity Commission (EEOC) is equivalent to filing a charge for purposes of the exhaustion of administrative remedies requirement under the Age Discrimination in Employment Act (ADEA). According to the majority: "The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces."
President Signs Law Permitting Pilots to Fly Until Age 65.
Yesterday (December 13, 2007), the President signed legislation raising the mandatory retirement age for pilots from 60 to 65. The new law, 49 U.S.C. 44729, permits pilots of Part 121 aircraft to work until age 65; however, a 60-year-old pilot may only be pilot-in-command of a flight between the United States and another country if there is another pilot in the flight deck crew who is younger than 60. The law provides that the limitation for overseas flights will cease when it is eliminated from the Convention on International Civil Aviation.
The Maturing Workforce and Federal Age Protections.
The aging population and lower birth rate will continue to require serious discussion regarding health care coverage, retirement benefits, and long-term care for the elderly and disabled, as well as how on earth to pay for what will be required.
