Age Discrimination
in Employment: A Texas Employee &
Employer Pathfinder
Evelyn Elaine Smith
MS in Library Science, University of North
Texas
Ph. D. in English Texas Christian University
In memory of my dad, Walstein Bennett Smith, Jr.,
J.D., M.B.A., Ph. D. (1920-1998)
J.D., M.B.A., Ph. D. (1920-1998)
.
TABLE
OF CONTENTS
·
Introduction
to the Topic
·
Legal
Information Sources
o
Primary
Sources
o
Case
Law
o
Digests
- Federal, State, and Texas
o
Statues
- Federal and Texas
o
Administrative
Law and Regulations -- Federal and Texas
o
Secondary
Sources
o
Legal
Encyclopedias
o
Annotated
Law Reports
o
Restatements
o
Looseleaf
Service
o
Legislative
Histories
o
Treatises
and Hornbooks
o
Law
Journals and Newsletters
o
Articles
o
Databases
o
International
Legal Materials
o
Interdisciplinary
Information Sources - Non-Legal
o
Books
o
Specialized
Encyclopedias
o
Journals
and Newsletters
o
Articles
·
Other Information Sources - Special Libraries
or Collections, Experts and Organization
Introduction to the Topic
Age Discrimination in the work place results when
employers knowingly give preference to workers younger than age 40 and base
their only or primary motive for favoring younger workers on the employee’s age
rather than basing this decision on other reasons that they can use to justify
their hiring, demotion, and firing choices.
In other words, to justify favoring an older work while excluding an
older one, the younger worker’s qualifications must prove necessary to for the
business to succeed.
Since the same arguments come into play when another
discriminatory factor, such as race, religious belief, sexual orientation, or
gender, is substituted for age, age discrimination case law and statutes
attempt to fill in where other civil rights laws which apply to employment
leave off even as they borrow from the opinions of broader civil rights case
law. For example, the prima facie test
that proves age- discrimination comes from, a civil rights test for establishing
racial discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):
·
The claimant belongs to a protected class;
·
He or she is fired, demoted or not promoted
to a position that he or she is qualified for;
·
His or her employer has rejected the claimant
for a position despite his or her qualifications;
·
The job remains open after the employer has
rejected the plaintiff, and the employer has continued to seek applications
from others with similar qualifications or has replaced him or her with someone
who was not an older worker (age 40 or over).
· If, however, the employer can rationally justify the
necessity of hiring a younger worker, the claimant has not proved age
discrimination.
Along the way, case law and statues continue to play tag
as respondents’ attorneys find loopholes in already enacted age-based
discrimination laws and precedent-setting federal and state cases. Congress and
state legislatures then respond by enacting more detailed age-based
discrimination laws that amend, over rule, and replace existing
age-discrimination laws and judicial rulings.
Legislation and case law also responds to the greying of American
society since age–discrimination now has no upper limit while originally the
Age Discrimination in the Workplace Act (ADEA) (1967) applied to older
employees only between the ages of 40 and 65.
Consequently, claimants seeking redress should not only
be familiar with age-discrimination in federal case law and statues, but also
with state statues and case law dealing with age-discrimination that ordinarily
mirror their federal counterparts with a few meaningful discrepancies. For instance, Texas age-discrimination
statues forbid age discrimination in work places with 15 or more employees
whereas federal law prohibits age discrimination in enterprises that employ 20
or more employees.
Also, while the United States government since 1998 has
mandated that no federal agency can discriminate against older workers, state
and local public safety workers, police, and firefighters do face a mandatory
age limit for hiring and retirement (as do members of the military). Accordingly, both employees and employers
need to be aware that discrepancies exist between federal and state age
discrimination laws.
While the ADEA and the state statues that dovetail
federal regulations have done much to ensure that older workers maintain their
retirement benefits, age-discrimination law has had a few unintended consequences since employers
now actually hire less older workers than before Congress enacted the ADEA in
1967. Nevertheless, an acquaintance with
age-discrimination law should provide workers over 40 with some guidelines for
recognizing age-discrimination at work and also allow their employers to
recognize and to prevent the violation of age-discrimination laws.
Potential claimants and employers alike thus
should note that a knowledgeable attorney is the best source they can make use
of in the ever-changing legal landscape of age discrimination law. This
pathfinder does not attempt to give any legal advice. It simply presents selected information on
age-discrimination law; and yes, the compiler, age 59, is very biased in her
belief that older workers are more than qualified for almost any type of
employment.
Legal Information Sources
Primary Sources
Case Law – Digests
·
Digest of Equal Employment Opportunity Law
(Dec. 6, 2011. 8:02 AM), http://www.eeoc.gov/federal/digest/index.cfm
Online quarterly covers
issues concerning EEOC law and provides synopsizes of EEOC decision as well as
summarizing federal court cases that affect federal employees.
·
Fair Employment Practices Cumulative DIGEST
and Index & Table of Cases (BNA 1980).
Published in conjunction
with Labor Law Reporter, Fair Employment Practices covers discrimination in
employment.
·
Martindale-Hubbell Law DIGEST (West, 2001--).
Martindale-Hubbell
thoroughly summarizes age-discrimination law not only in the U.S., but also in
the U.K. and other English-speaking countries.
A separate entry from the Martindale-Hubbard Law Directory, the
Martindale-Hubbell DIGEST, published since 1863, ceased printed publication
ceased in 2006, but it can be accessed through Lexis Nexis.
·
West American Digest System.
The West American Digest
System reports Supreme Court, federal, and state cases, organizing cases both
by jurisdiction and year as well as topic through the key number system.
Summaries in the headnotes provide points of law covered in each case, and the
West Key Number Digest provides the key numbers used in outline form. Many of the key numbers sub-topics covering
anti-age discrimination fall under the key number 231 H, which deals with labor
and employment. Campus Research and
Westlaw databases also allow patrons to access primary and secondary sources
under the topic “age-discrimination”.
Age-Discrimination Court Decisions
Supreme Court decisions since Congress enacted the ADEA
have becoming a driving force for change in age-based discrimination
legislation, eventually extending
protection to each worker over age 40 regardless of age as well as pointing out
limitations in existing legislative law, which Congress and state
legislatures usually rush to remedy.
Supreme
Court
·
General Dynamics Land Systems Inc. v. Cline,
540 U.S. 581(2004).
Discrimination against the “relatively young” is outside
ADEA's protection, so an employer does not violate ADEA’s prohibition against
discrimination by eliminating health insurance benefit programs for employees
under 50 while retaining them for older workers.
·
Gilmer v. Interstate/Johnson Lane Corp., 500
U.S. 20 (1991).
An age discrimination claim can be subject to compulsory
arbitration and still be consistent with the statutory framework and purposes
of the ADEA.
·
Gomez-Perez v. Potter, 553, U.S. 474 (2008).
A federal employee who is a victim of retaliation because
he or she has filed an age discrimination complaint may assert a claim under
the federal-section provision of the ADEA. Thus, older federal employees should
take note that federal agencies can consent to be sued.
·
Kimel v. Florida Board of Regents, 528 U.S.
62 (2000).
States may discriminate on the basis of age without
offending the Fourteenth Amendment's equal protection clause if this is in the
state’s interest. The concept of
sovereign immunity prevents governments and governmental agencies from being
sued without their consent.
·
Lorillard v. Pons, 434 U.S. 575 (1978).
If one of the parties in an age discrimination suit
requests a trial by jury, he or she should have it since Congress intended
this, even if it did not actually put this stipulation into the act.
·
Hazen Paper v. Biggins, 507 U.S. 604 (1993).
Disparate-treatment remedies under the ADEA do not exist
when an employer dismisses or demotes an employee older than age 40 for valid
reasons other than his or her age. The
ADEA only provides for liquidated damages when the action was willful.
·
Meacham v. Knolls Atomic Power Laboratory,
554 U.S. 84 (2008).
An employer bears the burden of proof to create an
affirmative defense in an age discrimination suit. The employer, however, is exempt from
liability for a disparate impact claim if the employer can prove that any
actions it takes to dismiss or demote employees stem from reasonable motives
other than an older employee’s age.
·
O’Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).
Whether or not a terminated employee who is a member of a
protected class has lost a position to another person in a protected class is
irrelevant, so long as the employee has lost his or her employment because of
age. Assuming that Title VII's McDonnell
Douglas’ framework applies to all age discrimination cases, a logical
correlation between each element of the prima facie case must exist to prove
age discrimination. Although the ADEA
limits its protection to those over age 40, it prohibits discrimination based on
age not membership in a protected class.
·
Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000).
A prima facie case may permit the court to discover that
an employer has discriminated against an older employee without any additional
evidence of unfairness, even if this sometimes does not sustain the jury's
finding of liability. Following the landmark McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) framework, a plaintiff must first establish a prima facie
case of age discrimination, and the employer must then come up with a nondiscriminatory
reason for firing the employee.
Smith v. City of Jackson, 544 U.S. 228 (2005).
Under the ADEA, disparate-impact claims are categorically
unavailable, but facts alleged by petitioners entitle them to relief under
Griggs v. Duke Power Co., 401 U.S. 424 (1971), the decision that first stated
the disparate-impact theory of recovery for cases brought under Title VII of
the Civil Rights Act of 1964 (Title VII).
Civil Rights cases often refer back to the landmark Griggs case, and the
ADEA authorizes recovery in disparate-impact cases that compares to the
remedies the Griggs case gives. However,
ADEA narrows its coverage to limit discrimination to individuals classified as
older workers.
Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).
To classify a violation of the ADEA as “willful”
defendants must either know or recklessly disregard conduct the ADEA
prohibits. However, if a defendant did
not know that its conduct violated the ADEA, and the defendant acts reasonably
and in good faith, its conduct is not “willful”, so respondents cannot claim
liquidated damages.
Federal Court Decisions
Federal court
decisions often iron out the details in age-discrimination law, giving
incentive to Congress and state legislatures to tweak age-discrimination laws.
·
Barnes v. Hillhaven Rehabilitation &
Convalescent Center, 684 F. Supp. 311 (N. D. Ga.1988).
The filing period for an EEOC charge of age
discrimination begins when an employer clearly informs an employee that he or
she will have to resign or be discharged. While both the Age Discrimination
Claims Assistance Act of 1988 and the Age Discrimination Claims Assistant
Amendments of 1990 have lengthened the time claimants have to file
anti-discrimination complaints with the EEOC,
and the Lilly Ledbetter Fair Pay Act of 2009 has linked it to the last
discriminatory pay check a claimant
received before filing an
age-discrimination claim, this case underlines the caveat that claimants
need to be aware of filing deadlines established by amendments to the ADEA.
·
Blakeney v. Lomas Information Systems, Inc.,
65 F. 3d 482 (C. A. 5 Tex. 1995).
An individual may not waive rights under the Older
Workers Benefit Protection Act (OWBPA) unless the waiver is “knowing and
voluntary”. However, even if such a release from liability is
voidable for its failure to meet requirements of the Older Workers Benefit
Protection Act (OWBPA), the failure to return consideration for the promise not
to sue shows that the terminated employee intends to be bound by the terms of
the waiver. Thus, cashing the pay check
creates a new promise and new obligation that is enforceable despite the
waiver's failure to meet the statutory requirements.
·
Bodenheimer v. PPG Industries, Inc. 5 F. 3d
995 (C.A. 5 La. 1993).
To make prima facie
case of age discrimination, the plaintiff must demonstrate that
·
he or she was discharged;
·
that the plaintiff was qualified for the
position from which he or she was let go;
·
that he or she was a member of a protected
class when dismissed;
·
that he or she was either replaced by someone
outside a protected class, replaced by
someone younger, or otherwise discharged because of age.
All of which is established in the landmark case of
McDonnell Douglas v. Green, 411 U.S., 411 U.S. 792 (1973) as well as by the
ADEA. An employer, on the other hand,
can counter this prima facie evidence by providing evidence that otherwise
justifies the firing of an older employee.
·
Clark v. Resistoflex Corp., 854 F. 2d 762
(C.A. 5 La. 1987).
Clark v. Resistoflex gives another take on the idea that
“age discrimination” in employment complaints must be timely filed with EEOC
prior to the initiation of civil action under the ADEA; but here, the court
defines “timeliness” by whether the unlawful practice occurred in a “deferral
state”; in which case, the time limit for filing age discrimination claims is
300 days while the time limit in a “non- deferral state” is 180 days. A deferral
state exists when state law prohibits age discrimination. The ADEA filing deadline for age
discrimination suits goes into effect the day the employee knew that he or she
would be fired, not his or her last day of work.
·
Collazo v. Nicholson, 534F. 3d 41(1st Cir. P.
R, 2008).
In contrast with Title VI, which allows for victims of
discrimination to seek compensatory damages for emotional distress and pain and
suffering, the ADEA limits claims to pecuniary benefits, collecting for unpaid
wages or over time. To collect an ADEA claim, an employee must prove that he or
she suffered adversely from the actions of an employer that resulted from the
employee age over 40.
·
Daughtrey v. Honeywell, 3F. 3d 1488 (C. A. 11
Ga.1993).
The plaintiff must show that an employer had specific
intent to interfere with his or her right to benefits as established by
Employee Retirement Income Security Act of 1974
(ERISA) (Pub. L. No. 830406, 88§ 829) to determine if an employer has
discharged an employee since retaining him or her would interfere with the
company’s benefits plan.
·
Hamilton v. Caterpillar, Inc., 966 F. 2d 1226
(C. A. 7 Ill.1992).
The ADEA does not provide remedies for reverse age
discrimination since this goes beyond the scope of the statue.
·
Karlen v. City Colleges of Chicago, 837 F. 2d
314 (7th Cir. 1988).
Early retirement plans that treat relatively younger
employers who are older than age 40 better than older ones do not violate the
ADEA since this act does not mandate equal treatment of younger employees if
they belong to the same age class as older employees. If, however, an employer
uses age and not cost or years of service as a basis for varying retirement
benefits, the employer has to prove a connection between the employees’
responsibilities and their cost to the employer.
·
Geller v. Markham, 635 F. 2d 1027 (C.A.
Conn., 1980).
A plaintiff establishes a prima facie case of age
discrimination by showing an employer’s supposedly neutral practice has a
disparate impact on workers of an ADEA protected class. However, the employer may justify his or her
actions are necessary to the successful conduct of business or related to job
performance.
·
Morelli v. Cedel (C. A. 2 N.Y. 1998).
When branches of foreign corporations operate in the
U.S., the ADEA under most circumstances protects the foreign corporation’s
employees if the corporation has at least 20 employees working in the U.S.
since foreign corporations are subject to U.S. anti-discrimination laws.
·
Sprint United Management Co. v. Mendelsohn,
587 F. Supp. 2d 1201 (D. Kan., 2008).
This widely cited case notes that when testimony comes as antidotal evidence, whether it is admissible depends on how closely
it relates to the plaintiff’s situation.
However, unfair prejudice and confusing issues might outweigh the value
of such evidence. Moreover, the plaintiff must show that a decision-nmaker made
discriminatory statements that adversely affected the employer’s actions.
·
Waldron v. SL Industries, Inc. 849 F. Supp.
996 (D. N.J.1994).
An employer’s justifications for the firing of an older
employee may be so contrived that they support a finding of age discrimination.
·
Suarez v. Pueblo Int’l Inc. 229 F. 3d 49
(C.A. 1 P. R. 2000).
When an ADEA claim arises from a reduction in a company’s
work force, an employee of at least 40 years of age who has met his or her
employer’s expectations can establish a prima facie case if he or she has lost
a job because of the employer’s adverse actions if this plaintiff proves that
in an company’s downsizing of employees, the employer did not act in a
non-biased way towards the plaintiff. The court then uses the reasonable person
test, answering whether the work conditions imposed on an older employee were
so abusive that a reasonable person would resign.
State Court Decisions
State court decisions ordinarily follow the lead of
federal court decisions, which, of course, have precedence.
·
Ferrante v. American Lung Assn., 90 N.Y. 2d
623 (1997).
The New York Human Rights law specifies that to support a
prima facie case of age discrimination, the plaintiff must prove 1) his or her
membership in a class protected by statute, 2) that the plaintiff’s employer
discharged him or her, 3) that he or she was qualified to hold the terminated
position, 4) and age discrimination against the plaintiff can be reasonably
inferred. After the fired employee has
set forth this clear-cut case of age discrimination, the burden of proof shifts
to the employer to present legitimate, nondiscriminatory reasons that support
the decision to terminate the employee.
If, however, the defendant does not given any other reasonable explanations for firing the employee, judgment favors the plaintiff. But if the defendant raises issues of fact, then he or she has successfully rebutted the prima facie case. In other words, employers should keep copious records detailing all employee disciplinary decisions.
If, however, the defendant does not given any other reasonable explanations for firing the employee, judgment favors the plaintiff. But if the defendant raises issues of fact, then he or she has successfully rebutted the prima facie case. In other words, employers should keep copious records detailing all employee disciplinary decisions.
·
Guz v. Bechtel National, Inc., 23 Cal. 4th
317 (Cal., 2000).
Employers have the absolute right to eliminate an
employee's work unit and to transfer its responsibilities to another company
division, so employees cannot claim a breach of an implied covenant. An employer does not create an
implied-in-fact employment contract preventing termination at will by retaining
an employee for many years when the company’s policy manual states that
employees hold no contracts guaranteeing their continuous employment and can be
terminated at the employer's discretion.
Moreover, downsizing by itself is not enough of a reason to allege
discrimination when a company dismisses an age-protected worker.
·
Marks v. Loral Corp. 57, Cal. App. 4th 30
(1997).
The use of a salary to differentiate between employees
discriminates if it adversely affects older employees as a group. However, the
employer's use of salary to differentiate between employees is not an example
of discrimination if the employer bases employee salaries on “reasonable
factors other than age” Thus, the employer may avoid charges of age
discrimination by offering older workers the opportunity to work at the same
job for reduced pay.
Texas Court Decisions
Texas case law bases its decisions both upon
Texas-anti-age discrimination statues and on federal legislation and case law.
·
DeMoranville v. Specialty Retailers, 909 S.W.
90 (Tex.1995).
Texas employees claiming age discrimination must file
complaints of unlawful practices with the EEOC or the Texas Commission on Human
Rights within 180 days after the unlawful employment practice. This limitations period starts when the
claimant learns he or she will be fired, not when he or she is actually let go.
This law, in turn, has been superseded by federal legislation that extends this
time period to 300 days for employers that employ 20 or more employees. It is
still an important law, however, because Texas statues allow employees to make
age discrimination claims when they work for firms of 15 or more employees.
·
Quantum Chemical Corp. v. Toennies, 47 S.W.
3d 473 (Tex. 2001).
To establish a claim of age discrimination, Texas
plaintiffs only must prove that age was a motivating factor when an employer
terminated an employee. Ample
circumstantial evidence in the form of coworkers’ testimony, letters, and
e-mails can also prove that the employer’s claim that the employee was fired
for poor performance is simply a pretext for age discrimination.
Statutes - Federal and Texas
Federal
·
Age Discrimination in Employment Act of 1967
(ADEA), Pub. L. No. 90-202, 29 U.S.C. § 621--29 U.S.C. § 634 (1967).
As the various cases reviewed earlier on this site
indicate, the upper age limit covered by this act have changed several times
from 1965 in 1967 to no upper limit
today; however, the ADEA first made it
illegal to discriminate against workers over age 40 in the work place in 1967.
Information given
online about the ADEA includes amendments to the act as shown in the following
EEOC web site:
The Age Discrimination in Employment Act of 1967 (ADEA),
EEOC (Dec. 14, 6:40 AM), http://www.eeoc.gov/laws/statues/adea.cfm
·
Age Discrimination Employment Amendments of
1986, Pub. L. 99-593, 100 U.S.C. § 3342 (1986).
Act eliminates the
upper age limit of 70 from the ADEA.
·
Age Discrimination Claims Assistance Act of
1988, Pub. L. 100-283, 29 U.S.C. §626 (1988).
Statue allows claimants an additional 18 months to file a
complaint of age discrimination with the EEOC.
·
Older Workers Benefit Protection Act of 1990
(OWBPA), Pub. L. No. 101-433, 29 U.S.C. §§ 623-630 (1990).
Older Workers Benefit Protection Act of 1967 (OWBPA),
EEOC (Dec. 12, 2011, 10:05 AM). http://www.eeoc.gov/eeoc/history/35th/thelaw/owbpa.html
Overrules Supreme Court’s 1989 decision, Public Employees
Retirement System of Ohio v. Betts that held that ADEA ordinarily does not
forbid age discrimination in employee benefits.
·
Age Discrimination Claims Assistance
Amendments of 1990 (ADCAA II), Pub. L. No. 100-283, 29 U.S.C. § 626n.
Act gives age-discrimination claimants an additional 450
days to file their own private law suits.
·
Civil Rights Act of 1991, Pub. L. 102-16642,
U.S.C. §1981 et. seq.
An Amendment to the Civil Rights Act of 1964, this act
allowed a plaintiff to show that an individual or group practice resulted in a
disparate impact on him or her on the basis of race, color, religion, sex, or
national origin if the defendant cannot prove the business necessity of such a
practice. Age-discrimination law suits
seized upon this statue as a means of extending similar rights to individuals
over age 40.
·
Age Discrimination in Employment Amendments
of 1998, Pub. L. No. 104-208, 110 § 3009 (1996).
Permanently reinstates an exemption that allows state and
local governments to use age as a basis for hiring and retaining police and
fire fighters.
·
Nondiscrimination on account of age in
federal government employment, Pub. L. 205-330, Title III U.S.C. § 341 (1998).
Statue forbids all federal government agencies from
discriminating on the basis of age for individuals over 40.
·
Workforce Investment Act of 2998 (WIA), Pub.
L. 105-220, 112 U.S.C.
·
Lilly Ledbetter Fair Pay Act of 2009, Pub. L.
111-2, 123§ 5(2009).
Lilly Ledbetter overturns the Goodyear Tire & Rubber
Co., 550 U.S. 618 (2007) decision that found the statute of limitation in an
equal-pay law suit begin the day the employer makes the first discriminatory
pay decision. The act thus amends the Civil Rights Act of 1964,
extending the 180-day period to file a discrimination law claim, so that it
starts again with each discriminatory pay check.
Texas
·
Texas Commission on Human Rights Act (TCHRA),
Texas Labor Code, Title 2 §. 21.051 et seq. (1983, amended 2009).
Act established the Texas Commission on Human Rights,
which the Human Rights Commission of the Civil Rights Division of the Texas
Workforce Commission superseded in 2009. The Civil Rights Division of Texas
Workforce Commissions handles complaints
involving age discrimination as enforced through the Texas Labor Code § 21.001
et seq., Employment Discrimination. Age
Discrimination is dealt with in 21.051 et seq.
Administrative Law and Regulations - Federal and
Texas
Federal
Although all age-related discrimination codes fall under
the aegis of Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), which
is accessed under 42 U.S.C. § 2000(e), age-discrimination claims are covered
separated under the Age Discrimination in Employment Act of 1967 and the Older
Workers Benefit of Protect Act of 1990. The duties of the Equal Employment
Opportunity Association (EEOC), the federal agency that handles discrimination
claims, are covered in 42 U.S.C. 20000e-4.
Congress has empowered the EEOC to file claims for all types of
discrimination in employment as well as to provide training, education, and
assistance to workers. The EEOC website covers civil rights law in regards to
employment by type, laws, regulations, and prohibited practices.
Title VII of the Civil Rights Act of 1964. U.S. Equal Employment Opportunity Commission. http://www.eeoc.gov.
Access to United States Code:
·
Users can access an un-annotated version of
U.S. Code by title and section, subtitle,
and division online: http://uscode.house.gov/search/criteria/shtml
·
Search the Office of the Law Revision
Counsel, United States Code (Dec. 14, 2011, 8:45 PM), http://uscode.gov/search/criteria/shtml
·
Westlaw provides U.S.C.A., and Lexis Academic
publishes U.S.C.S. both online and in hardcover volumes. The primary statue
that deals with age discrimination is the Age Discrimination Employment Act of
1967 as detailed in 29 U.S.C. § 1625.1 to §1625.32. The Older Workers Benefit
Protection Act details ways in which older workers can relinquish their rights
to pensions and employment plans.
·
Age Discrimination in Employment Act of 1967,
29 U.S.C. § 1625.1 –1625.32.
Retrieved from http://ecfr.gpoaccess.gov , this act has
three parts:
Subpart A—Interpretations:
§1625.1
Definitions.
§1625.2 Discrimination prohibited by the Act.
§1625.3 Employment agency.
§1625.4 Help wanted notices or advertisements.
§1625.5 Employment applications.
§1625.6 Bona fide occupational qualifications.
§1625.7 Differentiations based on reasonable factors
other than age.
§1625.8 Bona fide seniority systems.
§1625.9 Prohibition of involuntary retirement
§1625.10 Costs and benefits under employee benefit plans.
§1625.11 Exemption for employees serving under a contract
of unlimited tenure.
§1625.12 Exemption for bona fide executive or high
policy making employees.
Subpart
B—Substantive Regulations:
§1625.21 Apprenticeship programs.
§1625.22 Waivers of rights and claims under the ADEA.
§1625.23 Waivers of rights and claims: Tender back of
consideration.
Subpart
C—Administrative Exemptions:
§1625. 30 Administrative exemptions; procedures.
§1625.31 Special employment programs.
§1625.32
Coordination of retiree health benefits with Medicare state health benefits.
Authority: 81
Stat. 602; 29 U.S.C. 621; 5 U.S.C. 301; Secretary's Order No. 10–68;
Secretary's Order No. 11–68; Sec. 9, 81 Stat. 605; 29 U.S.C. 628; sec. 12, 29
U.S.C. 631, Pub. L. 99–592, 100 Stat. 3342; sec. 2, Reorg. Plan No. 1 of 1978,
43 FR 19807.
· e-CFR Data is current as of Dec. 5, 2011.
Additionally, West’s Key word system cites the various sections of the ADEA in
its publications, so the reader can match the legal decisions to points in the
ADEA.
GPO Access, Electronic Code of Federal Regulations (Dec.
14, 7:05 PM), http://ecfr.gpoaccess.gov
·
Older Workers Benefit Protection Act, 29
U.S.C. § 623 (1990).
OWBPA prohibits discriminatory employment benefit
retirement plans, so under the ADEA waivers of rights must meet the following criteria:
·
knowing and voluntary;
·
part of a written, clearly understood
agreement;
·
refer specifically to ADEA rights or claims;
·
exclude waiver of claims and rights arising
after date of waiver;
·
be for consideration (something employee not
already entitled to);
·
advise individual to consult an attorney;
·
provide 21 days for an individual to consider
the waiver, 45 days if group offer;
·
allow individual seven days to revoke the
waiver.
When group layoffs or exit incentive programs are
involved, the employee must be given:
·
Information on the class of employees
covered;
·
eligibility factors;
·
time limits applicable;
·
information as to job titles and ages of
individuals eligible or selected;
·
ages of individuals in same job
classification or unit not selected.
·
Office of General Counsel. Catholic University of America. Office of
General Counsel, Employment. Equal Employment Opportunity, Older Worker
Benefits Protection Act of 1990, (Dec. 13, 2011, 2:13 PM). http://counsel.cua.edu/fed/law/older.cfm
Texas
Printed,
and Database Access
·
Users can access Texas statues through the
Texas Legislature Online at http://www.statues.legis.state.txus/
Additionally, access is available through Westlaw through links to Texas Statues Unannotated, Texas Statues Annotated, and Historical Statues Annotated as well as through Lexis Academic, which provides access to Texas Codes and Rules Annotated, Texas Statues and Codes, and Texas Statues and Codes Archives. West’s Texas Digest 2d 34 C covers cases that users may be accessed through tables as well as descriptive key words. Cited case law backs up statue law (or vice versa).
For example, the Key number 861– Presumption and burden of
proof can be used in age discrimination cases that follow the general pattern
of Advance Ross Electronics Corp. v. Green 624 S.W. 2d 316 (1981): When an agreement requires
cause to terminate an employee, the burden of proof for establishing cause
rests upon the employer (KEY NUMBER
862, LABOR & EMPLOYMENT,
WEST TEX. DIGEST 2D).
·
Texas Labor Code. Title 2: Protection of
Laborers. Subtitle A. Employment Discrimination. Ch. 21. Employment Discrimination. Subchapter
A.
·
Chapter 21 of the Texas Labor Code provides
the means for Texas statutory law to carry out the policies of federal law as
enumerated in Title VII of the Civil Rights Act of 1964 as well as its
accompanying supplemental acts, including the Age Discrimination in Employment
Act of 1967 (29 U.S.C. § 1625.1 –1625.32).
As noted below, users can retrieve this source from http://www.statues.legis.state.tx.us/
·
Texas Labor Code § 21.051. Discrimination by Employer.
Texas Labor Code § 21.051. Discrimination by Employer.
If an employer fails to hire, discharges, or
discriminates in compensation, terms, or conditions or privileges of
employment because of race, color, disability, religion, sex, national origin,
or age, that employer has committed an unlawful employment practice (Acts 1993,
73rd Leg., chap. 269, §1).
·
Texas Labor Code § 21.052. Discrimination by
Employment Agency.
If it unlawful for an employment agency to refuse to
refer a potential employee because of his or her race, color, disability,
religion, sex, national origin, or age (Acts 1993, 73rd Leg., ch. 269, §1).
·
Texas Labor Code § 21.054. Administration or
Participation in Training Program.
A training program only discriminates if it
differentiates employees of at least 40 years of age but younger than 56 years
of age unless the program is provided for as an affirmative action program
under federal law (Acts 1993, 73rd Leg., ch. 269, § 1).
·
Texas Labor Code § 21.059. Discrimination Notice of Advertisement.
Based on potential employees’ race, color, disability,
religion, sex, national origin or age, it is unlawful to publish a notice
soliciting employment that indicates a particular preference unless this
preference is an occupational qualification (Acts, 1993, 73rd Leg., ch. 269, §
1).
·
Texas
Labor Code § 21.061. Insufficient Evidence of Lawful Practice.
The employment of one individual instead of another does
not furnish sufficient evident to establish an unlawful employment practice in
the absence of other evidence (Acts, 1994, 73rd Leg., ch. 269, §1).
·
Texas Labor Code § 21.101. Age Discrimination Limited to a Certain Age.
Age-discrimination only applies to individuals 40 years
of age or older (Acts 1993, 73rd Leg., ch. 269, § 1).
·
Texas Labor Code § 21.102 (b). Bona Fide
Employment Benefit Plan. Production
Measurement System.
A benefit plan may not justify a failure to hire because
of age; a seniority system or employment benefit play may not require or permit
involuntary employment because of age (Acts 1993, 73rd Leg., ch. 269, § 1).
·
Texas Labor Code § 21.104. Age Requirement
for Peace Officers or Firefighters.
Employers do not commit an unlawful employment practice
by imposing a minimum or maximum age for employment on police and fire fighter
personnel (Acts 1993, 73rd Leg., ch. 269 § 1).
·
Texas Labor Code § 21.112. Employees at
Different Locations.
If an employee hires employees at different locations
using different standards of compensation and/ or terms of employment, that
employer does not discriminate on the basis of age, color, disability,
religion, sex, national origin, or age (Acts 1994, 73rd Leg., ch. 269 § 1;
modified Aug. 11, 2007).
·
Texas Labor Code § 21.113. Imbalance Plan Not
Required.
Employees do not have to give preferential treatment on
the basis of race, color, disability, religion, sex, national origin, or age
(Acts 1993, 73rd Leg., ch. 269, § 1; modified Aug. 11, 2007).
·
Texas Labor Code § 21.115. Business
Necessity.
Even if an employment practice has a discriminatory
effect, an employer has not committed an unlawful practice if the employer has
not intentionally devised this practice to set apart particular workers or the
employer justifies a practice as a business necessity (Acts 1993, 73rd Leg.,
ch. 269, § 1, modified Aug. 11, 2007).
·
Texas Labor Code § 21.119. Bona Fide Occupation Qualifications.
If hiring a particular type of employee who is set apart
by religion, sex, national origin, or age, is a bona fide occupational
qualification, an employer may legally defend the hiring of certain individuals
rather than others (Acts 1993, 73rd Leg., ch. 269, § 1, modified Aug. 11,
2007).
·
Texas Labor Code § 21,122. Burden of Proof in Disparate Impact Case.
A claimant can establish that an unlawful employment
practice in a disparate impact case has occurred if he or she proves that the
respondent uses race, color, sex, national origin, religion, or disability as a
reason to hire, fire, or to discriminate against to an employee. Texas courts will apply federal judicial
interpretations under the Age Discrimination Act of 196 (29 U.S.C. § 621 et
seq. in all age-discrimination cases (Acts 1993, 73rd Leg., ch. 269, § 1,
modified Aug. 11, 2007).
·
Texas Labor Code § 21.125. Clarifying
Prohibition Against Intermissible Consideration of Race, Color, Sex, National
Origin, Religion, Age, or Disability in Employment Practice.
A claimant can establish that an employer has committed
an unlawful employment practice if the claimant can prove that an employee or
potential employee’s race, color, sex, national origin, religion, age, or
disability was the motivating factor (Added by Acts 1995, 74th Leg., ch. 76, §
9.05 (a); amended by Acts 1997, 75th Leg., ch. 1126, §1).
·
Texas Labor Code § 21.126. Coverage of
Previously Exempt Employees of the State or Political Division of the State.
It is unlawful for an elected public official in the
state of Texas to discriminate against
an employee or job applicant on the basis of race, color, sex, national origin,
religion, age, or disability if that individual is to serve as a staff member
or adviser of that elected public official (Added by Acts 1995, 74th Leg. Ch.
76, § 9.05 (a).
Texas Legislature Online, 82nd Legislature, First Called
Session (Dec.14, 2011, 7:43 PM), http://www.statues.legis.state.tx.us/
Secondary Sources
Legal
Encyclopedias
·
AMERICAN JURISPRUDENCE 2nd.
A quick search with the words “Age Discrimination
Employment Act” on Westlaw’s Campus Research pulled up 462 documents that
discuss pertinent cases. Am. Jur. Also
provides links to treatises and finding aids as well as key cite information on
both Westlaw and Campus Research. Lexis
Academic also furnishes its version of Am. Jur. 2d. Am. Jur. 2d’s printed
volumes allow users to find information through an index at the end of the set
and in the table of contents of each volume while footnotes reference case law,
codes, secondary sources, and annually replaced supplements.
·
CORPUS JURIS SECUNDUM
As its secondary title indicates, CORPUS JURIS SECUNDUM
provides a “Complete Restatement of the Entire American Law as Developed by All
Reported Cases” in alphabetical order. A property of West Publishing, CORPUS
JURIS SECUNDUM is available in print and on Westlaw. This restatement reference covers the ADEA
under the heading of Civil Rights § § 264 and 698. Age-discrimination in
employment law falls under the Civil Rights topic heading, § 261-278; §264
details establishing a prima facie case under the McDonnell Douglas framework,
even if this case predates ADEA cases that use this strategy.
·
DESKBOOK ENCYCLOPEDIA OF EMPLOYMENT LAW (ed.
Steve McEllistrem, 15th ed. 2007).
This Desktop Encyclopedia encompasses federal and state cases
affecting employment, covering discrimination, discipline and termination,
employee benefits, employer liability, and labor relations.
·
LABOR AND EMPLOYMENT LAW AND ECONOMICS (eds.
Kenneth G. Dau-Schmidt et al 2009).
Desktop volume includes discrimination in one of its
chapters written by scholars in law and economics.
·
TEXAS JURISPRUDENCE III (TEX. JUR. III).
Published by Westlaw, TEX. JUR. III attempts to provide a
comprehensive analytical treatment of the decisions of Texas courts as well as
acts of the Texas legislature as 400 separate topics and a words and phrases
index allow users to search for information on Texas statues and cases. TEX.
JUR. covers age discrimination law under the heads of Civil Rights, §§24, 62,
78, 79-81 and Employer §75. Case law
that appears in footnotes supports statue law.
Annotated
Law Report (A. L. R.)
A.L.R. provides
timely secondary sources pertinent to federal cases as published in a series of
seven Reports. In print, users choose a
topic and then consult the index volume and look up the annotation. Since
A.L.R. is also available on Lexis Academic and Westlaw, users can also access
information by means of keywords. The online sources are updated weekly. At
last count, a Boolean search reveal over 400 articles that cover age
discrimination in employment. Thus,
A.L.R. is an important resource for determining age discrimination in
employment trends as the following ALR articles show:
·
Tracy Bateman Farrell, J.D. Annotation, Sex-Plus Discrimination Claims
Under Title VII of Civil Rights Act of 1964 (U.S.C. A. §§ 2004 et seq.). 51
A.L.R. FED. 2d 341 (2010).
Sex-plus discrimination law suits mark a new frontier in
civil rights work place law suits where an employer classifies employees on the
basic of their gender plus another characteristic, such as age, race, or
physical characteristics. Instead of
differentiating between men and women as a whole, the employer discriminates
upon his or her gender plus another civil rights category. A brief review of sex plus age claim reveals
that the courts have favored employees over the individuals making the claims.
·
Deborah E. Buckman, J. D. Annotation,
Preemption by Airline Deregulation Act. 49 U.S.C.A. § 41713(b)(1) of State Law
Labor-Related Claim. 41713(b)(1). 41
A.L.R. FED. 2d 215 (2009).
Article cites instances where the Airline Deregulation
Law did not preempt local and state laws forbidding age discrimination.
·
Daniel A. Klein. Construction and Application
of Lilly Ledbetter Fair Pay Act of 2009. Pub. L. No. 111-2, 124 Stat. 5 A.L.R.
FED/ 2d 201 (2009).
Klein explains how legislative action overturned the
Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc.,
550 U.S. 68 (2007), which changed the filing time in discrimination law suits
from an 180- to a 300-day filing period as noted by the recent age-related
discrimination cases, Almond v. Unified School Dist. N. 501, 749 F. Supp. 2d
1196 (D. Kan. 2010) and Chennareddy v. Dodaro, 2010 WL 3024164 (D.D.C.
2010).
Restatements
RESTATEMENT (THIRD) OF EMPLOYMENT LAW (ALI 2008).
Restatement of Employment Law condenses and restates
existing employment law, which also encompasses age-discrimination in
employment cases, into a series of principles or rules. All series of
Restatements are available on Westlaw, although only the 2nd and 3rd series can
be accessed via Lexis Academic.
Looseleaf
Services
·
EMPLOYMENT COORDINATOR (2011).
First published as RIA Employment Coordinator, this
“looseleaf” is available on the Westlaw Database as well as in print in
selected law libraries; for example, the University of Texas Law Library’s
catalog lists a looseleaf version.
·
LABOR LAW REPORTS: EMPLOYMENT PRACTICES
(1972- ).
Originally published in 1965 as Employment Practice
Guide, this topical law series covers discrimination in employment law and its
accompanying legislation as well as labor law and labor law statues.
·
LEX K. LARSON. EMPLOYMENT DISCRIMINATION [Looseleaf service
in print and through Lexis Nexis] (2nd. ed. 1975--).
Updated three times annually and available through Lexis
Academic, Employment Discrimination covers discrimination in employment and
labor and furnishes updates on newly enacted or pending legislation.
Legislative
Histories
·
Congressional Record.
The Congressional Record is available both in print and
since the 93rd Congress (1973-1974) online via the Library of Congress’ Thomas,
Lexis Congressional, and the Westlaw and Campus Research databases. Listed
below in reverse chronological order is a the bill history available through
Westlaw publications online as it pertains just to ADEA amendments and the
Older Worker’s Benefit Protection Act during the last three decades, although
the Westlaw link to the Congressional Record turned up 20 entries.
Since the Thomas database comes up far too
many entries in a keyword search, the Westlaw and Lexis databases are useful in
weeding out extraneous material. Be
forewarned, however, that the term “age discrimination in the workplace” in
Boolean searches comes up with everything from the nomination of Elena Kagan as
an Associate Justice to the Supreme Court (156 Cong. Rec. S. 6612) to the Jobs
for Mainstreet Act (155 Cong. Rec. H
15431).
·
The Library of Congress, Congressional
Record, Thomas. http://thomas.loc.gov/head/LegislativeData.php?&n-Record&c-111).
·
Age Discrimination in Employment Act:
o
STATEMENTS ON INTRODUCED BILLS AND JOINT
RESOLUTIONS 150 Cong. Rec. S1288-01 (Feb. 12, 2004).
o
STATEMENTS ON INTRODUCED BILLS AND JOINT
RESOLUTIONS 147 Cong. Rec. S5441-01 (May 22, 2001).
o
AGE DISCRIMINATION IN EMPLOYMENT WAIVER
PROTECTION ACT. 134 Cong. Rec. S14706-01 (Oct. 5, 1988).
o
AGE DISCRIMINATION CLAIMS ASSISTANCE ACT OF
1988. 134 Cong. Rec. H1251-02 (March 29, 1988).
o
AGE DISCRIMINATION CLAIMS ASSISTANCE ACT. 134
Cong. Rec. S2477-01 (March 17, 1988).
o
AMENDMENT OF AGE DISCRIMINATION IN EMPLOYMENT
ACT OF 1967. 132 Cong. Rec. S16850-02 (Oct.16, 1986).
o
AGE DISCRIMINATION IN EMPLOYMENT AMENDMENTS
OF 1986. 132 Cong. Rec. H8117-02 (Sept. 23, 1986).
·
Older Workers Benefit Protection Act:
o
OLDER WORKERS BENEFIT PROTECTION ACT. 136.
Cong. Rec. H8614-02 (Oct. 2, 1990).
o
AMENDMENTS SUBMITTED. 136 Cong. Rec.
S13435-02 (Sept.24, 1990).
o
OLDER WORKERS BENEFIT PROTECTION ACT. 136
Cong. Rec. S13660-02 (Sept. 24, 1990).
o
OLDER WORKERS BENEFIT PROTECTION ACT.136.
Cong. Rec. S13594-01 (Sept. 19, 1990).
o
OLDER WORKERS BENEFIT PROTECTION ACT. 136.
Cong. Rec. S13292-02 (Sept.18, 1990).
o
OLDER WORKERS BENEFIT PROTECTION ACT. 136.
Cong. Rec. S13236-02 (Sept, 17, 1990).
o
OLDER WORKERS BENEFIT PROTECTION ACT 136
Cong. Rec. S12982-01 (Sept. 12, 1990).
The Library of Congress, Congressional Record, Thomas
(Dec. 14, 9:25 PM), http://thomas.loc.gov/head/LegislativeData.php?&n-Record&c-111).
·
U.S. Code Congressional and Administrative
News.
The U.S. Code Congressional and Administrative News gives
either the House or Senate Report online prior to the 99th Congress, but after
this, it provides the reports of both legislatures. Available via the Westlaw database and on
Thomas since 1973, U.S.C.C.A. N. is also available in print from 1952, although
not all government document depositories house all past copies of the
U.S.C.C.A.N.
Organized by public law number, U.S.C.C.A.N. allows the user to access information on public law titles and their dates of consideration and passage as well as committee report numbers and names, bill numbers, and Congressional volume numbers. U.S.C.C.A.N. pamphlets also include Presidential proclamations and executive orders as well, which means users can find in print all federal statues at large since 1952.
Organized by public law number, U.S.C.C.A.N. allows the user to access information on public law titles and their dates of consideration and passage as well as committee report numbers and names, bill numbers, and Congressional volume numbers. U.S.C.C.A.N. pamphlets also include Presidential proclamations and executive orders as well, which means users can find in print all federal statues at large since 1952.
Treatises
and Hornbooks
·
·
MARK A. ROTHSTEIN ET AL, EMPLOYMENT LAW (4th
ed. 2010).
Rothstein covers various forms of discrimination in the
workplace as well as area pertinent to age-discrimination cases, such as wages,
hours, and benefits, conditions of employment, and discharge.
Law
Journals and Newsletters
Finding Aids
·
LegalTrac
Gale’s LegalTrac gives subscribing libraries access to
law reviews, legal newspapers, specialty publications, bar journals, and
international legal journals.
·
Index to Legal Periodicals and Books in
Print. (H. W. Wilson, 1994--).
Available both in print, with updates issued monthly and
through Westlaw databases, the index lists legal topics by topic, including
“age discrimination”. Increasingly, law
libraries rely on electronic publications for this index rather than purchase
the print version. For example, Baylor
Law School’s print version of the Index only runs through 2008.
·
Westlaw, Campus Research, Lexis Nexis,
FindLaw, and Google Scholar.
Westlaw, Campus Research, and Lexis Academic provide
subscription access to legal journals while FindLaw and Google Scholar provide
online access to a limited number of law review journals. On Google Scholar,
researchers can choose to access items either by most recent year or by topic
relevancy.
Law
Review Articles on Age Discrimination
·
Charles Brown, Comment, Congressional
Abrogation of Eleventh Amendment Immunity by Passing the ADEA and the ADA,
BAYLOR L.REV. 339 (1999).
Brown argument that the Supreme Court may resolve the
issue of whether or not it allows state and local government employees over age
40 to collect liabilities in age-discrimination cases if it grants certiorari
in a number of cases that seek to address governmental immunity from liability
even though published in 1999 predates the Nondiscrimination on account of age
in federal government employment Act of 1998.
Here Brown argues that such decisions might prove difficult because Congress failed to express its intent in this matter, and because the ADEA does not enforce the 14th amendment, thus showing that Congress is continually trying to play catch up with case law rulings on age discrimination.
Here Brown argues that such decisions might prove difficult because Congress failed to express its intent in this matter, and because the ADEA does not enforce the 14th amendment, thus showing that Congress is continually trying to play catch up with case law rulings on age discrimination.
·
Christine Jolls, Hands-Tying and the Age
Discrimination and Employment Act, 74 TEX L. REV. 1813 (1995-1996).
“Hand-tying” refers to an employer not engaging in
attractive short-term behavior that often results in destructive long-term
results. In limiting the range of an
employer’s acceptable behavior, the ADEA enables employers who wish to
compensate workers based on their ages to do so. The most basic form of age
discrimination occurs in disparate impact cases, such as Hazen Paper Co. v.
Biggins, 507 U.S. (1993). Hence,
disparate impact liability is a favored device in cost-based decision making.
·
D. Aaron Lacy, Symposium, Second National
People of Color Legal Scholarship Conference: You Are Not Quite as Old as You
Think: Making the Case for Reverse Age Discrimination Under the ADEA, 29
Berkeley J. EMP. & LAB. L. 363 (2005).
The ADEA offers limited protection to relatively younger
members of protected classes from reverse discrimination. However, the ADEA does not stop the states
from enacting statues increasing ADEA-style protections. Similarly, Congress could amend the ADEA to
disallow all forms of age discrimination.
·
Mack A. Player, Title VII Impact Analysis
Applied to the Age Discrimination in Employment Act. Is a Transplant Appropriate? 14 Tol. L. Rev.
1261 (1982-1983).
Title VII and a pre-Age Discrimination in Employment Act
case that applied it, McDonnell Douglas v. Green, 411 U.S. 802 (1973) sets the
standard of proof in disparate-treatment, age discriminated cases as first
delineated in Burdine v. Texas Department of Community Affairs, 608 F.2d 563
(5th Cir. 1979), although Burdine further clarifies this standard by requiring
the plaintiff to gives the reasons for his or her rejection or dismissal. The defendant’s motive is difficult to prove
since the defendant may deny that age discrimination plays any if any role in
the treatment of the employer.
Nevertheless, the McDonnell Douglas model provides a flexible structure
for proof of motivation.
·
Evan H. Pontz, Comment, What a Difference
ADEA Makes: Why Disparate Impact Theory Should Not Apply to Age Discrimination
in Employment Act, 74 N.C.L.REV. 267 (1995).
Pontz suggests that Congress should address
disparate-impact age discrimination claims rather than the judiciary. Since
Congress did not mention disparate impact theory in the original 1967 ADEA bill
or in any of the amendments of the same means that Congress only intended the
disparate-impact test only to be implied in Title VII cases.
Of course, Congress addresses this oversight
in
·
Toni J. Querry, Note, A Rose by Any Other
Name No Longer Smells as Sweet:
Disparate Treatment Discrimination and the Age Proxy Doctrine After
Hazen Paper Co. v. Biggins, 81 Cornell L. REV. 530 (1996).
The Supreme Court greatly narrowed the scope of the age
proxy doctrine in Hazen Paper v. Biggins since its verdict permits employers to
evade the scope of the ADEA by applying employment decisions based on non-age
based criteria that coincidentally correlate highly with age. The language of
the ADEA supports much broader remedies than the Hazen Paper v. Biggins
decision allows.
·
Brendan Sweeney, Comment, “Downsizing” the
Age Discrimination in Employment Act: The Availability of Disparate Impact
Liability, 41 Vill. L REV. 1527 (1996).
After Hazen Paper v. Biggins, 507 U.S. 604 (1993),
federal courts have held that disparate impact is not available in ADEA cases
since the ADEA statue only prohibits actions motivated by age and in a
disparate impact claim, the employer’s action are motivated by factors other
than age. This goes against the Geller
v. Markham, 635 F. 2d 1027 (2nd Cir. 1980) argument that extended Title VII’s
disparate impact claims to the ADEA, holding that the language and purpose of
Title VII and the ADEA are nearly identical.
Markham v. Geller, 451 U.S. 945 (1981) also overturned Geller.
·
Tara-Ann Toppulo, Finding a hole in the ADEA:
Allowing a Cause of Act for Age discrimination Among Employees Within the Age
Protected Class, 29 Dayton L. REV. 169 (2003).
Federal circuit court decisions are divided on whether
employees over age 40 can bring a case of age discrimination against their
employer when another group of employees within this rather wide age
discrimination class, aged 40 and over, received benefits they are denied. As case on point, Cline v. General Dynamics,
296 F3d 466 (6th Cir. 2002) held in favor of employees in their 30s when they
were not afforded the same health care benefit.
Even though the Supreme Court overturned this decision in 2004 after
Toppulo wrote this article, Toppulo’s
argument underlines the idea that until a case reaches the Supreme
Court, points of law in age discrimination are rather fluid.
·
Bryan B. Woodruff, Unprotected Until Forty:
The Limited Scope of Age Discrimination in Employment Act of 1967, 73 Ind. L.
J. 1295 (1997-1998).
The ADEA protects only individuals age 40 and older from
discrimination as noted in such cases as O’Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308(1996); however, the courts have found that individuals
under age 40 cannot make claims under the ADEA even if ageism can single out
any age-defined group or individual.
Articles
·
Scott J. Adams, Age Discrimination
Legislation and the Employment of Older Workers, 11 LAB. ECON. at 219 (2004).
Before Congress amended the ADEA so that age discrimination
in employment had no age limit, empirical studies showed that the ADEA
increased the employment of workers in the protected classes, but in older
workers not in the protected age range, the percentage of older workers
declined. No data actually pointed to the increased hiring of older workers.
·
Peter H. Wingate et al, Organization
Downsizing and Age Discrimination Litigation.
The Influence of Personnel Practices and Statistical Evidence on
Litigation Outcomes. 27 LAW & HUM. BEHAV. (2003).
Researchers analyzed 115 federal cases dealing with age
discrimination, disparate treatment allegations, and organizational downsizing
wherein the court awarded the defendant summary judgment in 73 percent of the
cases. Decisions were more likely to favor the defense when supervisors
regularly performed formal performance appraisals and the companies had a definite
layoff policy in place.
·
JOANNA LAHEY, State Age Protection Laws &
the Age Discrimination in Employment Act,. NAT’L B. OF ECON. RES. (2006) (Dec.
16, 6:15 AM), http://www.nber.org/papers/w12048
Examination of statistical data drawn from 1968 to 1991
shows that age discrimination laws have unintended consequences. Current population studies of white males
aged 25-84 showed that employment of workers over age 50 actually dropped after
Congress enacted the ADEA. Moreover,
hiring of older workers decreased in states that had their own age
discrimination laws.
·
David Neumark, Age Discrimination Legislation
in the United States, 21 CONTEMPOR. ECON. POL’Y, at 297 (2003).
Empirical evidence suggests that enacting the ADEA has
reduced the possibility that employers default on older workers retirement
plans. Economic motives and negative
stereotypes of older workers explain age discrimination.
Databases
In addition to the very thorough collection of statues
and case law on age discrimination in the work place furnished by Lexus
Academic, Campus Research, and Westlaw and an access to recent legislative
history online on Lexus Congressional, one database, Age Line, covers
age-related issues: Age Line.
·
Age Line (EBSCO).
EBSCO’s Age Line database focuses on issues concerning
individuals over age 50, its content drawn from different disciplines,
including public policy, economics, and psychology. Age Line’s Thesaurus on Aging serves as an
index for terms, and abstracts accompany each citation. EEOC’s publishing of settlement claims in age
discrimination cases makes for interesting reading.
International
Legal Materials
·
ZMIRA HORNSTEIN. OUTLAWING AGE
DISCRIMINATION: FOREIGN LESSONS, U.K. CHOICES (2001).
Hornstein summarizes age discrimination law in Australia,
Canada, and the U.S.
·
THE LAW ON AGE DISCRIMINATION IN THE E.U.
(Malcolm Sargeant (ed. 2008).
Sargeant covers age discrimination law and legislation in
Germany, France, Ireland, Italy, Hungary, the Netherlands, Finland, and the
U.K.
·
DANIEL VAUGHAN-WHITEHEAD. WORK INEQUALITIES IN THE CRISIS [electronic
resource]. EVIDENCE FROM EUR. (2011).
Vaughan-Whitehead covers age and gender discrimination
law trends in 30 European countries and summarizes age discrimination law cases
in 14 European countries.
Interdisciplinary
Information: Non-Legal
Books
·
AGE DISCRIMINATION & DIVERSITY; MULTIPLE
DISCRIMNATIONS FROM AN AGE PERSPECTIVE (Malcolm Sargeant. ed., Cambridge U.
Pub. 2011).
This collection of essays theorizes that discrimination
against older workers results from the inability to recognize their diversity;
however, such discrimination usually discriminates against multiple
diversities—age and/or gender, sexual orientation, ethnicity, class, or
disability.
·
DISABILITY AND AGE DISCRIMINATION:
PERSPECTIVES IN LAW AND PSYCHOLOGY (Richard L. Wiener, Steven L. Willborn ed.,
Springer, 1st ed. 2010).
Supervisors and younger colleagues negative stereotypes
of older workers contribute to age discrimination, so Wiener and Willborn
attempt to apply a ‘social analytic jurisprudence framework” that tests legal
assumptions against their behavior. They
also examine the historical background and psychological origins of age
discrimination and note the limits of the ADEA.
·
RAYMOND GREGORY, AGE DISCRIMINATION ON THE
AMERICAN WORKPLACE (Rutgers U. Pub. 2001).
Gregory, an attorney specializing in employment law,
examines ways the workplace stereotypes older workers and shows how to identify
age-based discrimination in hiring, early retirement programs, demotions, and
transfers.
·
JOHN MACNICOL, AGE DISCRIMINATION: AN
HISTORICAL AND CONTEMPORARY ANALYSIS (Cambridge U. Press 2006).
Interdisciplinary study outlines the history of age
discrimination in employment and health care in the U.K. and the U.S. since the
1930s.
A special thanks to the
Baylor University Law School Library for the use of its resources and the invaluable help of its librarians.
Require Additional Online Legal Help?
McGinley
Library patrons who also hold a Waco-McLennan Public Library Card may access a Legal Collection of subscription-databases. Other Texas library card holders may also find
similar material via TexServe-participating libraries. Additionally, Texans can turn to several free advice Websites, including the following Webpage:
The legal links furnished on this Web page
represent the opinions of their authors, so they complement—not substitute—for
an attorney’s advice.
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