Age Discrimination LEGAL AID SOCIETY- MARCH 2011

Transcription

1 Age Discrimination LEGAL AID SOCIETY- EMPLOYMENT LAW CENTER MARCH 2011

2 What Will You Learn Today? State and Federal Age Discrimination Law How to Prove Age Discrimination How to Pursue an Age Discrimination Claim Remedies for Age Discrimination

3 What Is Age Discrimination? A G E D I S C R I M I N A T I O N I S T R E A T I N G T W O P E O P L E D I F F E R E N T L Y B A S E D O N T H E I R A G E.

4 What Laws Protect Against Age Discrimination? A ge Discrimination Employment A c t ( A DEA) 2 9 U.S.C Covers employers with 20 or more employees Fair Employment and Housing Act (FEHA) Cal. Gov t Code Covers employers with 5 or more employees

5 What s the Magic Number? Both FEHA & the ADEA only protect workers older than 40 years old. Under the ADEA, employees over 40 are only protected against discrimination in which they are treated different than younger employees. General Dynamics Land Systems, Inc. v. Cline As long as the party bringing the claim is older than 40, and older than the favored co-employee, the age of the co-employee is not relevant.

6 Proving Age Discrimination Burden of Proof Disparate Treatment Individual Systematic Disparate Impact

7 Burden of Proof Under the ADEA, to prove age discrimination an employee must show he was discriminated against because of age. A mixed motives approach will not survive this causation requirement. Gross v. FBL Financial Services Phipps v. Gary Drilling Co. (other reasons okay if but for satisfied) Harris v. City of Santa Monica (FEHA case)

8 Individual Disparate Treatment An individual disparate treatment happens when a specific employee is treated differently than younger employees because of age. Individual Disparate Treatment Prima Facie Protected class (over 40) Performing Satisfactorily/Qualified for Job Adverse action Evidence of discrimination after action Legitimate Business Reason Pretext

9 Systematic Disparate Treatment Systemic disparate treatment claims arise when an employer discriminates against many employees in a protected class, in this case those who are over age 40 Facial Discrimination Policy clearly discriminating (e.g. no health insurance for employees older than 45), unless BFOQ The discriminatory requirement is reasonably necessary to the normal operation of his business. AND Absent the requirement most people excluded would not be able to perform the job anyway, or it would be impossibly or highly impractical to deal with people excluded by the requirement on an individual basis Pattern & Practice Unstated policy (e.g. hiring/layoff practice) discriminates Prima facie case use statistics Legitimate business reason Pretext

10 Disparate Impact Neutral employment policy has discriminatory effect or impact Proving disparate impact: P need not show intent P must show disproportionate impact D must show business necessity P must show less discriminatory alternative

11 What About Mandatory Retirement Ages? ADEA FEHA Does allow mandatory retirement ages for employees at least age 65 if: Were high level (think executive or policy makers) for 2 years proceeding their retirement AND Who are entitled to an annual retirement benefit of at least $44,000. For executives or policy makers, but the minimum retirement benefit is $27,000. Universities can set a mandatory retirement age for tenured faculty so long as the institution also has a policy allowing their re-employment on a year to year basis. Professional medical corporations can mandate requirement for doctors 70 and older, subject to certain statutory exceptions.

12 Retaliation Separate Claim of Discrimination Proof Use disparate treatment model: Prima Facie case Protected Activity (reasonable belief only) Adverse Employment Action Causal Link (Time connection is most imp.) Business reason Pretext P need not be in protected class

13 Time to Go to Court? Exhaustion Requirements In order to file a civil suit for age discrimination an employee must first exhaust administrative options and receive a Right to Sue Letter.

14 Administrative Agencies In order to file a civil suit for age discrimination an employee must first exhaust administrative options and receive a Right to Sue Letter. ADEA claims go through the Equal Employment Opportunity Commission (EEOC) FEHA claims go through the Department of Fair Employment and Housing (DFEH) This means to sue under the ADEA & FEHA in one lawsuit a plaintiff must first exhaust two administrative routes. Federal employees are not required to exhaust any administrative remedies before filing an ADEA civil suit, but they must give the EEOC 30 days notice of their intent to sue.

15 How the Agencies Work EEOC DFEH Filing Deadline = 300 days from last discriminatory act Automatic cross-filing with DFEH Process = File charge, employer response, investigation, mediation (?) Determination Cause = conciliation No Cause = Right to Sue letter issued (90 days) Filing Deadline = 1 year Verify for EEOC crossfiling Process: Similar to EEOC. Right to Sue (1 year)

16 What Are the Remedies? R E M E D I E S A R E S E T B Y E A C H S T A T U T E W I T H F E H A B E I N G M O R E G E N E R O U S T H A N T H E A D E A.

17 Available Remedies ADEA FEHA Aim is to make the plaintiff whole. Under this theory, punitive damages and emotional distress are not available. Front & Back Pay Willful or reckless discrimination = double damages Value of lost stock options and other benefits of employment such as pension plans Injunctive Relief (reinstatement) Winning plaintiff gets attorney s fees (Defendant only gets fees if the claim was frivolous. Provides for all all relief generally available in noncontractual actions including punitive damages and emotional distress Front & Back Pay Injunctive Relief (reinstatement) Attorney s Fees

18 Resources Equal Employment Opportunity Commission (EEOC) Toll free: (800) Department of Fair Employment and Housing (DFEH) Toll Free (800) Senior Legal Advocacy (Council on Aging) Santa Rosa, CA (707)

19 Legal Aid Society-Employment Law Center M O N T G O M E R Y S T R E E T S U I T E S A N F R A N C I S C O, C A ( ) W W W. L A S - E L C. O R G

20 Questions?