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Elder Law
St. Louis University School of Law
Gilchrist, Barbara J.

A.      Federal Laws
1.       Age Discrimination in Employment Act – protects applicants & employees > 40
a.       29 USC § 623 – law applies to private employers, employment agencies and some unions
b.       § 630 – employer of > 20 employees (not partners)
c.        § 631 – employees (or applicants) > 40 years of age
d.       § 623 – prohibits…(d) retaliation & (e) advertising an age preference
(i)       Exceptions: (f)(1) bona fide occupational qualification & differentiation based on reasonable factors; (f)(2)(A) seniority system & (B) benefit plan
2.       Age Discrimination Act – protects older individuals in the delivery of federal or federally-assisted services & benefits
3.       Rehabilitation Act – protects persons with handicaps from discrimination in housing, employment & federally assisted programs
4.       Equal Pay Act – protects against discriminatory salary and pay levels based on age
5.       Americans with Disabilities Act – requires reasonable access to places of public accommodation
6.       Fair Housing Act – protects older handicapped persons in the sale or rental of housing
7.       Equal Credit Opportunity Act – protects against discriminatory lending practices based on age
8.       Truth in Lending Act – protects against discriminatory lending practices based on age
B.      Enforcement of ADEA by EEOC – § 626
1.       Must exhaust administrative remedies
2.       File with EEOC within 180 days of discriminatory act (unless there is a state agency; then 300 days)
3.       Must wait 60 days after administrative filing to file lawsuit, or file within 90 days of receiving notice that EEOC will not proceed
4.       EEOC does file lawsuits for some complainants
C.      Remedies – § 626
1.       Reinstatement
2.       Back pay including lost benefits
3.       Front pay when reinstatement is not possible
4.       Double back pay if violation was willful (but no punitive damages)
5.       Employee has duty to mitigate damages
D.      Proving the Case
1.       McDonnell Douglas Test {p. 106}
2.       Shifting burden of proof
3.       O’Connor v. Consolidated Coin – measure is a younger replacement, not necessarily < 40 years old E.        Pretext 1.       Gilkerson v. Toastmaster {p. 107} a.       P made prima facie case; ∆ offered evidence of legitimate, nondiscriminatory reason for discharge; jury determined ∆’s reasons were pretext 2.       Reeves v. Sanderson {p. 110} a.       Evidentiary burden is on P; “it is not enough…to disbelieve the employer; the factfinder must believe the P’s explanation of intentional discrimination F.       Reduction in Force 1.       Bialas v. Greyhound {p. 124} a.       In reduction of force cases, evidence that duties were assigned to younger worker does not prove prima facie case; must also prove age was a factor in firing this employee 2.       Hazen Paper v. Biggins {p. 127} a.       There is no disparate treatment when the factor motivating the employer is some feature other than age, even when the motivating factor is correlated with age (like pension status) G.      Disparate Impact 1.       Smith v. Jackson {p. 131} a.       A disparate impact theory is available under the ADEA b.       It’s not enough for P to point to generalized policy; must isolate and identify the specific employment practice that is responsible for any statistical disparities c.        ∆’s reliance on seniority and rank is reasonable H.      BFQO 1.       Rasberg v. Nationwide Life (Ohio 1987) a.       Company had mandatory retirement at age 62 for pilots; Court found that ∆ must show that all or substantially all of those excluded are in fact disqualified I.        Voluntary Early Retirement Plans 1.       Smith v. World Ins. {p. 141} a.       An offer of early retirement constitutes constructive discharge when the choice is essentially either early retirement or continuing to work under intolerable conditions 2.       Vega v. Kodak {p. 142} a.       Mere offers of early retirement, even those with attractive incentives do not = constructive discharge under ADEA J.        Older Workers Benefit Protection Act (OWBPA) – 1990 1.       Amended ADEA à a.       Defines terms for observing employee benefit plan b.       Employee can waive ADEA rights only if done knowingly & voluntarily 2.       Oubre v. Entergy Operations a.       P signed a release of claims in termination agreement, received severance $ & then sued former employer; ∆ argued that, although the release doesn’t conform to ADEA requirements, P ratified release by not tendering a return of the $; Ct: OWBPA is clear & strict; an employee may not waive an ADEA claim unless the release satisfies law; ∆’s theory would frustrate federal law K.      State Laws 1.       Most states have laws similar to ADEA 2.       May apply to employers with fewer than 20 employees 3.       May allow broader remedies II.      SOCIAL SECURITY A.      Old Age, Survivors & Disability Insurance (OASDI) B.      Principles on which SS is based: 1.       Entitlement – worked hard their entire lives and feel they should be rewarded 2.       Floor of protection – never intended to be a safety net; SS was designed to supplement other sources of income (not supplant them) 3.       Welfare v. insurance – tension in perspectives b/n SS being a “right” earned by a lifetime of contributions and an overly generous welfare program; it’s part insurance b/c the more you pay in, the higher your benefits; it’s part welfare because you will likely receive more than you paid in and lower income beneficiaries receive, proportionally, more in benefits 4.       Benefit levels related to wages --- if SS is a welfare program, i.e. if need is the basis for the benefit, then lower income workers should get a higher benefit 5.       Self-financing – the notion that SS benefits are not part of the general budget has protected the trust fund; it is run similar to an employer provided pension fund rather than a social welfare program funded by a designated tax on wages 6.       Mandatory – belief is that higher income workers wouldn’t participate and program would fail if voluntary 7.       Lack of discretion – system works without controversy as to who is entitled to benefits C.      Importance as Income Source 1.       96% of all workers are included 2.       Exceptions à some state & local gov’t employees 3.       91% of persons > 65 receive benefits
4.       Nearly 2 in 3 (66%) get half or more of their income from social security
5.       About 1 in 5 (22%) get all their income from social security
D.      Other Income Sources
1.       Asset income
2.       Ear

       Persons in Family: 3 à $18,310
4.       Persons in Family: 4 à $22,050
5.       add $3,740 for each additional person
C.      Benefit
1.       2009: $647/$1,011
2.       States may provide supplement (such as blind pension)
3.       Other income – earned or unearned reduces benefit $ for $
4.       In-kind income also reduces benefit by 1/3
D.      Eligibility
1.       Categorical
a.       65 or older
b.       Blind or disabled
2.       Residence/Citizenship
a.       Must be citizen or qualified alien and live in US
b.       30 consecutive days outside US results in loss of benefits
c.        Personal Responsibility & Work Opportunity Reconciliation Act of 1996
(i)       8/22/96 – must be “qualified alien” and meet a condition
(ii)     8 categories of “qualified alien”
(iii)    5 conditions that allow receipt of benefit – includes noncitizens receiving SSI prior to 8/22/96
3.       Financial – income & assets
a.       Income
(i)       Other earned or unearned income reduces benefit $ for $
(ii)     In-kind contributions such as food or shelter-related expenses are counted as unearned income & reduces benefit up to 1/3 + $20 disregard
(iii)    Living in the household of another (receives support & maintenance) – 1/3 reduction in benefit
(iv)   3rd party payment of medical bills is not counted as income
b.       Income Exclusions
(i)       First $65/month + $1 for each $2 thereafter
(ii)     Impairment-related work expenses of disabled or blind
(iii)    HUD rent subsidies
(iv)   Food stamps
c.        Financial – Resources
(i)       Countable resources ≤ $2000/$3000
(ii)     Exclusions: home (where person lives); life insurance with face value ≤ $1500; burial funds ≤ $1500; household goods; an automobile
E.       Other Benefits
1.       SSI is a program of last resort
2.       Must apply for any and all other benefits
3.       May receive SSR/SSD (or other benefits and SSI if max is ≤ SSI max (+ disregards)
F.       Noninstitutionalization
1.       Residents of public institutions are ineligible
2.       Mental facilities & prisons
3.       Nursing homes if receiving Medicaid
G.      Transfer of Assets
1.       Similar to Medicaid
H.      SSD & SSI
1.       SSD doesn’t begin for 1st 5 months of disability
2.       Applicant may receive SSI during those months if otherwise qualifies
A.      Eligibility
1.       Fully insured (SSD) or meet financial criteria for SSI
2.       Less than retirement age (SSD) or less than 65 (SSI)
3.       Meet definition of disability (see above)
4.       Satisfy the waiting period for SSD (5 months before 1st benefit check)