Elder Law
Spring 2008
Reaves
I. History
1. 1967- Workers age 40+ protected from discrimination in:
A. Hiring
B. Termination
C. Compensation
D. Conditions of employment
29 USC § 621 (b) “promote employment of older persons based on ability rather than age, prohibit arbitrary age discrimination
in employment”
2. 1974-Federal, state, local government ee’s covered.
3. 1984-enforcement transferred to EEOC from DOL.
4. 1978-raised protected age from 65 to 70.
5. 1986-eliminated age ceiling.
6. 1990-higher employment costs (benefits) associated with ee’s “cannot be a factor in decision making”
II. Protected Class
1.All state and local government and governmental agencies regardless of size.
2. Er’s (Charitable and non profit) of 20 or more ee’s.
a. 20 or more ee’s for each working day of the week-full time-for 20 weeks (not consecutive) in a C.Y.
b. P-T Ee’s are not countable but if Er is subject to ADEA, P-T Ee’s and temporary Ee’s are protected.
TESTS ARE INDIVIDUAL AND FACT DETERMINATIVE. AN EE IF ER DICTATES TIME PLACE AND CONDITIONS OF EMPLOYMENT.
3. PARTNERS OWNERS AND DIRECTORS ARE NOT COVERED EE’S. Beware of partner–
partner must be positioned to control or be in decision making posture of ER. Not a subterfuge to exclude protection.
Caruso v. Peat Marwick Mitchell
4. Domestic Ee’s of foreign corp’s covered.
5. U.S. Citizens of domestic corps over seas are covered.
6. Unions with a hiring hall or an exclusive CBA of 25 Union Ee’s
III. EXCLUDED
1. Bonafide executives and decision makers. Look to ability to hire or fire or guide the corp.
2. Non-forfeitured Retiree Benefits of $44,000/annum.
3. Police, fire, prison etc. exempted. Secretary of Labor and EEOC were charged with drafting guidelines in 1993 but have failed to so.
4. Professors protected i
TION WAS NON DISCRIMINATORY
a. Must be non-discriminatory
b. Can be ugly as shit as long as legal.
THE EE MUST DEMONSTRATE THAT ER’S DEFENSE IS NOT A PRE-TEXT
IF SO-TRIER OF FACTS DETERMINES THE VALIDITY OF THE CLAIM.
C. STATISTICAL EVIDENCE: Tough road to go. Statistical evidence is the law of large numbers, and an ADEA claim generally requires specific evidence that s/he was discriminated against. Just because an Er elects to terminate upper management, and all upper management are ADEA protected and dismissed, the Ee has proven nothing.
D. DISPARATE IMPACT CLAIM:
P must prove:
1. Identify the specific practice challenged.
2. Demonstrate disparate impact on older Ee’s.
3. Prove causation.
D can rebut by:
