Age Discrimination in Employment Act of 1967

Question 1

Who does the ADEA apply to and who does it protect?

Answer 1

What Employers does it apply to:

• Employers with more than 20 employees
• Statute applies to US citizens employed abroad by American corporations or their subsidiaries unless application of the ADEA would violate domestic laws of foreign nation
• state and local governments, employment agencies, labor organizations and the federal government.

(Excluded: Elected Officials and Uniformed Members of Armed Forces)

**Union is not an “Employer” so if an action is brought under ADEA against them it is not for $$ Damages but only for Remedial Scheme under FLSA

***Blanket Exemption: local police and firefighters that have met the hiring or retirement in effect under state or local law

11TH AMENDMENT IMMUNITY- State employees cannot sue state employer in federal court for money damages (but can seek equitable relief)

UNLESS States waive 11th Amended Immunity expressly (by statute or judicial ruling) or indirectly (by failing to assert the immunity) ONLY OTHER EXCEPTION: Federal Gov.’t and EEOC can sue them for monetary damages

UNDER 40 NOT PROTECTED: It does not protect workers under the age of 40, although some states have laws that protect younger workers from age discrimination. It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.

-New Texas Case – says if discrimination started at 39 but continued – will be protected until age 40 (under Texas law)

Question 2

What are the similarities and differences between Title VII and ADEA in terms of who they apply to?

Answer 2

Both ADEA & Title VII

1. Both to Employers and Employment Agencies
2. Both apply to statutory employees (except ADEA is 20 and Title VII is 15)
3. Unions (Title VII requries hiring halls to have 25 members and Title VII only requires 15)
4. DAMAGES AGAINST UNIONS ARE DIFFERENT - ADEA like the Equal Pay Act follows remedial scheme of the fair labor standards act (FLSA) and only authorizes suits against an “EMPLOYER” and excludes Union from that definition. So no suit for damages against Union under the ADEA.
5. Blanket Exemption from Coverage - State and local law police officers and firefighters who have attained the age of hiring or retirement in effect under (State or local law)
6. ADEA applies to US citizens employed abroad by American corporations or subsidiaties unless ADEA would violate domestic law of foreign nation
7. ADEA Statute coveres Federal, State and Local Government workers (NOTE: 11th Amendment Immunity exists for State and local - employees cannot seek damages, but only suit for equitable relief UNLESS states waive this immunity in federal court) Also note, the EEOC can bring a claim against state or local government and the 11th Amendment immunity does not apply to the federal government suing them to make employees whole.
8. ADEA excludes Elected Officials
9. ADEA & Title VII exclude members of the armed forces
10. Both Title VII and ADEA

Question 3

For the first 40 years, Title VII and ADEA were treated almost identical because of the overwhelming textual similarity between the two statutes and the fact that they both addressed discrimination, what are the major differences the ADEA now has from Title VII beyond who they apply to?

Answer 3

Title VII v. ADEA

1. The Impact Analysis