Topic 4: Age Discrimination Flashcards
What factors contribute to the increasing number of older workers in the U.S.?
Increased desire to work longer, availability of meaningful jobs for educated workers, more women in the workforce, economic uncertainty, and the need for retirement savings.
What trend is expected for older workers in the coming years?
Older workers will continue working longer due to economic conditions, retirement needs, and job opportunities.
What are some common stereotypes about older workers in a youth-obsessed culture?
They are often viewed negatively despite evidence of their strong work ethic and experience.
What advantages do older workers bring to employers?
Abundant knowledge, experience, efficiency, lower turnover, understanding of company culture, and lower health costs due to fewer dependents.
Why do older workers have lower health costs for employers?
They have fewer dependents, leading to lower healthcare expenses.
What is happening to the number of people who continue to work after the age of 55?
The number of people working after age 40 has been relatively stagnant for years
The number of people working after the age of 55 is dropping
The new health care reform has caused it to change drastically
The number of people continuing to work after the age of 55 is rising
The number of people continuing to work after the age of 55 is rising
The number of people continuing to work after the age of 55 is rising. The text uses the example of the dramatic rise in this number between 1993 and 2011.
The amount of women in the workforce:
Has increased
Stayed relatively the same since 1975
Is a difficult statistic to collect
Has decreased
Has increased
The percentage of women in the workforce has moved up to 35 percent in 2010, from 23.1 percent in 1975.
This rise in older workers remaining in the workplace longer carries with it a concomitant rise in ______________claims.
Age discrimination
Healthcare
Gender discrimination
Overpayment
Age discrimination
It is natural that with more older worker and workers staying in the work force longer, that age discrimination claims would rise. This will undoubtedly taper off after the Baby Boomers born in 1945-1960 have left the workforce.
Which of the following is not a reason employers benefit from retaining and hiring older employees?
Less turnover
Higher health costs
Greater efficiencies
Greater understanding of firm history
Higher health costs
Employers benefit from older workers due to less turnover, greater efficiencies, greater understanding of firm history and corporate culture, and lower health costs due to fewer dependents.
While individual older employees can have higher health care costs than other employees, in one respect they have lower health costs. Why would that be?
Less pregnancy-related costs
They generally put more thought into their health
Fewer dependents
Medicare takes over once they hit a certain age
Fewer dependents
Having fewer dependants means older workers have fewer people’s health care costs to worry about. Overall, health care costs will likely be lower even though the older worker him/herself may have higher health costs than a younger worker would for him/herself.
Why was age not initially included as a protected category in Title VII of the 1964 Civil Rights Act?
Congress was unsure of the scope of the problem and directed the Secretary of Labor to investigate first.
What did the Secretary of Labor’s investigation find regarding age discrimination?
Age discrimination was prevalent, with employers setting arbitrary age limits for hiring and forced retirement.
What challenges did older workers face due to age discrimination?
Difficulty retaining employment and finding new jobs after termination.
When was the Age Discrimination in Employment Act (ADEA) passed?
1967
What was the original age range protected under the ADEA?
40-65 years old
How has the ADEA changed over time regarding age limits?
The upper age limit was eventually eliminated.
To whom does the ADEA apply?
Public and private employers and unions with more than 20 employees.
What did the 1981 EEOC regulation state about age discrimination?
Employers cannot favor one individual over another based on age if both are 40 or older.
How did federal courts generally interpret the ADEA regarding younger workers within the protected class?
They ruled that the ADEA does not protect younger workers (40+) from being treated less favorably than older workers.
What was the Supreme Court’s ruling in General Dynamics Land Systems, Inc. v. Cline?
Employers may favor older workers over younger workers, even if both are 40 or older.
What did Justice Souter mean by “the enemy of 40 is 30, not 50”?
The ADEA is meant to protect older workers, not prevent employers from favoring them over younger ones.
How is age considered in Title VII of the Civil Rights Act of 1964?
It is considered a protected class for people over 60
It is considered a protected class
It is not considered in the civil rights act
It is a protected class for people 40 years of age and older
It is not considered in the civil rights act
The scope of the suspected problem was unknown, so age was not included at that time.
Congress first directed the secretary of labor to investigate age discrimination. The Secretary found that age discrimination against older workers was prevalent, with the bulk of the problem stemming from employers setting __________ age maximums
Reasonable
Scientifically backed
Arbitrary
Strategic
Arbitrary
The investigation reveals that stereotypical views of an older person’s abilities guided employment decisions.
The Age Discrimination in Employment Act protects workers that are ____ and older.
50
40
65
45
40
The Secretary of Labor discovered that the stereotypes about age begin to be applied to workers at about 40 years old.
True or False. If two people apply for the same position, and one is 42 and other 52, the employer may not lawfully turn down either on the basis of age, but must make such a decision on the basis of some other factor.
True
Age should not be considered in the employment decision. However, an employer may favor an older worker over a younger one.
The court case of General Dynamics Land Systems, Inc v. Cline found that:
The employer may never favor the old over the young
The employer must always favor the young over the old
Employers may always favor the old over the young, even when both candidates are 40 years of age and older
Only people 40 years of age and older will be highly favored in employment situations
Employers may always favor the old over the young, even when both candidates are 40 years of age and older
Employers may always favor the the old over the young, even with both candidates being 40 years of age and older. See Justice Souter’s comment about favoring the old over the young.
What are the four elements needed to establish a prima facie case of age discrimination under the ADEA?
1) The employee is over 40 years old,
2) was qualified for the job,
3) was performing essential job functions, and
4) was treated less favorably than a substantially younger employee.
Must the favored younger employee in an ADEA claim be outside the protected class (under 40)?
No, the favored employee can be 40 or older, but they must be substantially younger than the complaining employee.
Who bears the burden of proof in an ADEA disparate treatment case?
The plaintiff must prove that “but for” age discrimination, the adverse job action would not have occurred.
Does the burden shift to the employer to provide a non-discriminatory reason in ADEA cases?
No, unlike other discrimination cases, the burden remains on the plaintiff to prove age was the determining factor.
What is the most common employer defense to ADEA disparate treatment claims?
The Bona Fide Occupational Qualification (BFOQ) defense, usually related to public safety.
What are the two conditions under which age can be used as a BFOQ?
1) Substantially all persons over a certain age cannot perform essential job functions, or 2) some individuals over that age have a disqualifying trait that cannot be detected otherwise.
Give an example of when age might be a valid BFOQ.
If medical evidence shows persons over 75 are prone to sudden-onset seizures with no pre-detection method, age could be a valid BFOQ.
What is the “same actor defense” in an age discrimination case?
If the same employer hired and later fired the plaintiff (40+), courts may infer that age was not a factor in termination.
Is there a “reasonable accommodation” requirement under the ADEA?
No, age is not considered a disability under the law, so employers are not required to provide accommodations.
What types of employer retaliation are prohibited under the ADEA?
Retaliation for discrimination complaints, which can lead to punitive damages if willful or reckless.
Are hostile work environment claims allowed under the ADEA?
Yes, employees can file claims if they experience a hostile work environment due to age discrimination.
Why are many age discrimination cases filed at the state level?
State laws may offer better filing timelines, apply to more employers, and provide a broader range of damages.
Which of the following is not required in establishing a claim of age discrimination under the ADEA?
Was qualified for the employment position
Is over 40 years of age or older
Was adequately performing the essential job functions
Was made to feel old because the majority of employees are younger
Was made to feel old because the majority of employees are younger
In order to present a prima facie case, an employee must show that he or she: 1) is 40 years of age or older; 2) was qualified for the employment position; 3) was adequately performing the essential job functions; and 4) was treated less favorably than another younger employee.
In order to establish a prima facie case for age discrimination under the ADEA, the claimant might provide that he/she was treated less favorably than another younger employee. What qualifies as a younger employee?
The only qualifier is that they must be younger
Younger than the age of 40
At least one year younger
Substantially younger than the complaining employee
Substantially younger than the complaining employee
A favored younger employee may be 40 years of age or older.
To establish an ADEA claim, the burden of proof falls squarely on the ___________ to show that “but for” age discrimination the negative job action would not have occurred.
Plaintiff
Perpetrator
Defendant
Offender
Plaintiff
The burden-shifting of McDonnell Douglas v. Green does not apply to the ADEA.
The most common employer defense to ADEA disparate treatment claims is:
Bona fide occupational qualification
The treatment by supervisors was unknown to the rest of the company
An EEOC special exception
Ignorance to the established laws
Bona fide occupational qualification
Most employers claim there is a bona fide occupational qualification (BFOQ) requiring a certain age, stating that being a certain age adds an inherent risk to the safety of the job or a person’s ability to do the job.
This defense is applied when the same employer hires and then fires the 40 years or older plaintiff employee claiming discrimination. The courts have concluded that if the employer was willing to hire a person 40 years of age or older, a permissible inference is present that age was not a motivating factor in the ultimate termination of that same employee.
Bench mark defense
Aged employee defense
Past performance defense
Same actor defense
Same actor defense
The rationale behind this concept is that an employer held no discriminatory intent because he/she hired an older person in the first instance.
What is disparate impact age discrimination?
It occurs when a facially-neutral company policy disproportionately harms employees covered by the ADEA.
What is the employer’s main defense to a disparate impact age discrimination claim?
The policy was based on a Reasonable Factor Other than Age (RFOA).
How does the EEOC define an RFOA?
A policy is based on an RFOA if it is reasonably designed and administered to achieve a legitimate business purpose while considering potential harm to older workers.
What factors help determine whether an employment practice is based on an RFOA?
Clearly defined business purpose
Clear and fairly applied factor
Manager training to avoid discrimination
Limits on supervisor discretion
Impact on older employees
Degree of harm to protected workers
How does the ADEA’s standard differ from the “business necessity test” in Title VII cases?
Employers are not required to find a less-discriminatory alternative to achieve a legitimate business purpose.
Must an employer use all EEOC-listed factors to justify an RFOA defense?
No, but considering harmful impacts and efforts to mitigate them strengthens the defense.
The employer defense to disparate impact claims is that the employment practice:
Is legal because employees have formally agreed to it during the hiring process
Has consistency across all employees
Includes a reasonable factor other than age
Is a BFOQ
Includes a reasonable factor other than age
“Age discrimination may also be established when an employee shows that a facially neutral company policy has a negative effect on employees covered by the ADEA. The employer defense to disparate impact claims is that a reasonable factor other than age (RFOA) prompted the employment practice.”
Which of the following is not a guideline in determining if an employment rule is a RFOA?
Whether the employer has clearly defined the business purpose of the factor
The extent to which managers and supervisors are trained to apply the factor without engaging in discrimination
Whether the rule was designed to discriminate against older employees
Whether the factor itself is clear and applied fairly
Whether the rule was designed to discriminate against older employees
The full list includes the following: 1) Whether the employer has clearly defined the business purpose of the factor; 2) whether the factor itself is clear and applied fairly; 3) the extent to which managers and supervisors are trained to apply the factor without engaging in discrimination; 4) the extent to which supervisor discretion is limited or based on subjective judgments; 5) the extent to which older employee’s are impacted by the practice; and 6) the degree of harm to individuals within the protected age group.
Unlike the “business necessity test” in Title VII cases, when an employer makes a reasonable business decision impacting older workers, the employer is __________ to search for, or employ, another less-discriminatory practice for achieving the legitimate business purpose.
Neither required or not required
Required
Not required
Obligated
Not required
From the text, “Unlike the “business necessity test” in Title VII cases, under the ADEA when an employer makes a reasonable business decision impacting older workers, the employer is not required to search for a less-discriminatory practice for achieving the legitimate business purpose.”
Which of the following statements is true based on this scenario?
An employer asked managers to identify the least productive employees without providing any guidance about how to do so. As a result, older workers were disproportionately rated as least productive.
The design and administration of the practice was not reasonable because it decreased the likelihood that the employer’s stated goal would be achieved and increased the likelihood that older workers would be disadvantaged.
The design and administration of the practice was reasonable because it increased the likelihood that the employer’s stated goal would be achieved and decreased the likelihood that older workers would be disadvantaged.
The employer has the right to fire less-productive employees at will, even if it has a negative impact on older workers
Employers do not have to list distinct reasons for firing an individual based on productivity. If a person is deemed as being less productive, he/she can be fired at will.
The design and administration of the practice was not reasonable because it decreased the likelihood that the employer’s stated goal would be achieved and increased the likelihood that older workers would be disadvantaged.
The EEOC states that an “employment practice is based on a RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.” The EEOC has issued some extensive, but not exhaustive, rules to determine whether an employment practice is a RFOA:
Whether the employer has clearly defined the business purpose of the factor
Whether the factor itself is clear and applied fairly
The extent to which managers and supervisors are trained to apply the factor without engaging in discrimination
The extent to which supervisor discretion is limited or based on subjective judgments
The extent to which older employees are impacted by the practice
The degree of harm to individuals within the protected age group
Age discrimination may also be established when an employee shows that a facially-neutral company policy has a ___________effect on employees covered by the ADEA.
Neutral
Negative
Affirmative
Positive
Negative
From the text, “Age discrimination may also be established when an employee shows that a facially-neutral company policy has a negative effect on employees covered by the ADEA. The employer defense to disparate impact claims is that a reasonable factor other than age (RFOA) prompted the employment practice.”
What is a Reduction in Force (RIF)?
A procedure used by employers to terminate positions due to lost funding, changing work requirements, or business reorganization.
Why do RIF cases often lead to age discrimination claims?
Older employees are often the highest-paid, making them more likely to be affected by layoffs.
Will courts question the fairness of a company’s RIF decision?
No, courts focus on whether the termination was based on clear procedures, budgetary considerations, and actual position elimination.
Under what circumstances does a RIF violate the ADEA?
If it is used to eliminate older workers, based on subjective criteria, or as a pretext for discrimination.
Give an example of a discriminatory RIF.
If a company fires a 60-year-old manager but immediately hires a younger manager for the same role, it may be pretext for age discrimination.
How does seniority relate to age discrimination in RIF cases?
While seniority and age are related, the Supreme Court ruled they are “analytically distinct” under the ADEA.
What was the ruling in Hazen Paper Co. v. Biggins?
The Supreme Court ruled that terminating an employee due to pension vesting is not age discrimination under the ADEA.
Why are federal courts divided on salary-based RIF plans?
Because salary and age are highly correlated, some courts view salary-based layoffs as potential disparate impact age discrimination.
How should employers handle RIF plans to avoid ADEA violations?
Employers should ensure that their RIF plans are clearly defined, objective, and not disproportionately impacting older employees.
When a firm eliminates one or more positions as part of a strategic business plan to realign operations and/or reduce costs, this is referred to as:
Cost saving measures
Reduction in force
Decreasing overhead measures
Reduction in older workforce
Reduction in force
Employers must be careful that there is a legitimate reason for a reduction in force (RIF).
Courts will not review whether the termination of an older worker was ________, but rather whether it was based upon clear procedures, objective budgetary considerations, and actual position elimination.
Legal
Thought through
Immoral
Fair
Fair
Legitimate business reasons do not have to be fair.
True or False. The ADEA prohibits elimination of an older worker’s position for budgetary reasons
False
The ADEA does not prohibit elimination of an older worker’s position for budgetary reasons.
Which of the following is not a reason a RIF plan would be seen as discriminatory?
Used as an opportunity to eliminate older workers
Eliminates one or more positions as part of a strategic business plan
The selection of which employees will be terminated is based on subjective criteria
The RIF is initiated as a pretext to avoid ADEA concerns
Eliminates one or more positions as part of a strategic business plan
The key to avoiding age discrimination claims in the RIF context is that it be accomplished according to sound business judgment and data, not arbitrary considerations.
The Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604, held that age and seniority are ________________ from each other in the ADEA context.
Indistinguishable
Analytically indistinct
Unclear
Analytically distinct
Analytically distinct
This is sometimes hard to understand, since in most cases the most senior employees are also the oldest.
What does the ADEA say about mandatory retirement ages?
The ADEA generally prohibits mandatory retirement ages, with exceptions for firefighters, police officers, and certain high-level corporate executives with pensions of at least $44,000.
How do employers often encourage early retirement?
They offer incentives such as cash payments and extended benefits.
What is the purpose of the Older Workers Benefit Protection Act (OWBPA)?
It protects older workers from abuse in early retirement offers and ensures retirement incentives are clearly explained.
What is an ADEA waiver?
A legal agreement in which an employee waives the right to sue under the ADEA in exchange for retirement incentives.
What strict conditions must an ADEA waiver meet under the OWBPA?
Clearly written and understandable language
Recommends consultation with an attorney
21-day consideration period
7-day rescission period
Must reference the ADEA
Covers only vested rights
Must include a valid exchange of value
Who bears the burden of proving an ADEA waiver is valid if disputed?
The employer
What happens if an employer’s group ADEA waiver is missing a required element?
The waiver may be invalidated, and the retired employee can sue without returning benefits.
How does negotiating individual ADEA waivers increase legal risk for employers?
It may lead to disparate treatment claims if different retirement terms favor one protected class over another.
Can an ADEA waiver prevent a retiree from filing an age discrimination complaint with the EEOC?
No, it only prevents the retiree from personally suing under the ADEA.
Which of the following is an exception to the ADEA’s prohibition of mandatory retirement ages?
A. Firefighters and police officers
B. A small number of corporate executives who carry substantial discretionary authority and will have a company pension of at least $44,000
C. Non-pension employees that have turned 70 years of age in a government position
Both A and B
Both A and B
The law recognizes that for some professions there are legitimate reasons to have youthful employees.
To protect older workers from potential abuse and to prevent circumvention of ADEA anti-discrimination protections through the use of aggressive retirement pressures, in 1990 Congress passed:
OWBPA
NLRB
ADEA
EEOC
OWBPA
The Older Workers Benefit Protection Act (OWBPA) provides significant notice requirements regarding retirement plans.
How should ADEA waivers be written?
In a manner that can be upheld within the courts of law
To the level of understanding that any corporate lawyer could clearly understand
To the level that below-average individuals can clearly understand the agreement taking place.
In a manner calculated to be understood by the individual, or by the average individual eligible to participate in a workforce reduction plan
In a manner calculated to be understood by the individual, or by the average individual eligible to participate in a workforce reduction plan
The notion that a “reasonable person” should be able to understand a waiver is an important concept.
A workforce reduction plan must contain language recommending consultation with an attorney and has to include both ____-day consideration and ___-day rescission periods.
60 : 120
21 : 7
60: 7
21: 60
21 : 7
Courts interpret this timeline strictly.
Most of the time, retirement incentives and accompanying ADEA waivers are:
Made on an individual employee basis
Made to numerous employees at the same time
None of the above
Made to numerous employees at the same time
Most of the time, as part of a strategic business plan, employers will offer incentives to a class of senior employees.
Age discrimination claims:
Are on a steep decline due to good employment practices
Are on the rise
Are on the decline
Have been constant for two decades
Are on the rise
As the baby boomers enter their 60’s, age discrimination claims filed with the EEOC are on the rise, with 22,857 persons in 2012 making age-related complaints with the EEOC, compared with 16,548 in 2006.
Author Dave Bernard, in a 2012 U.S. News and World Report article, argues that older workers are better workers because:
They create many new and innovative ideas
They are generally early adopters of technology
They possess abundant knowledge and experience
They have a weak internal compass
They possess abundant knowledge and experience
From the text, “Author Dave Bernard, in a 2012 U.S. News and World Report article, argues that older workers are better workers because they possess abundant knowledge and experience, have a good idea of how to get the job done, and have a stronger internal compass. Bernard notes that employers benefit from older workers due to less turnover, greater efficiencies, greater understanding of firm history and corporate culture, and lower health costs due to fewer dependents.”
What factors are causing employees to work until they are older than 55 years old?
Increased desire to work longer
The need for workers to accumulate adequate retirement resources
People living longer lives
All of the above
All of the above
Because of continued uncertain economic conditions, the need for workers to accumulate adequate retirement resources, and more opportunities for older workers, the trend for older workers to keep working will continue.
Employment policies made it difficult for older workers to retain employment and find new employment after termination. In response, Congress passed the:
NRLA
ALAPA
EBRI
ADEA
ADEA
Age Discrimination in Employment Act
The ADEA applies to public and private employers and unions with more than _______ employees.
Twenty
Fifteen
Fifty
Thirty
Twenty
While some regulations apply to employers with only 15 employees, “the ADEA applies to public and private employers and unions with more than 20 employees.”
Suppose two people apply for the same position, and one is 42 and other 52. What action can the employer take?
The employer can just not consider both candidates to avoid an age discrimination claim
The employer in this situation can only make a decision based on age and experience. No other factors can be considered
Employers can lawfully disqualify either applicant based on age
The employer may not lawfully turn down either on the basis of age, but must make the decision on the basis of some other factor
The employer may not lawfully turn down either on the basis of age, but must make the decision on the basis of some other factor
From the text, “In 1981, the EEOC adopted a regulation which rested on the notion that ADEA prohibitions against age discrimination were uniform in their application to both young and old within the protected class. Specifically, the regulation stated “it is unlawful in situations where this Act applies, for an employer to discriminate in hiring or in any other way by giving preference because of age between individuals 40 and over.” Thus, if two people apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either on the basis of age, but must make such decisions on the basis of some other factor.”
How old must an employee be to claim age discrimination under the ADEA?
All ages can claim age discrimination
Must be over the age of 50
Must be over the age of 40
Must be over the age of 30
Must be over the age of 40
The stated purpose of the ADEA was to protect workers aged 40-65 years, but eventually the upper age limit was eliminated altogether.
In age discrimination, what is the meaning of a mixed motive?
Hidden business reasons for discriminating
Different employees discriminating for different reasons
The many factors which come into play in discrimination cases
The claimant has ulterior motives for claiming he/she has been discriminated against
The many factors which come into play in discrimination cases
Most often it is difficult to parse out of employer actions a single reason for a claimed adverse job action due to age.
Which of the following is not a typical position that can be defended by the BFOQ defense?
Police Officer
Cook
Bus Driver
Pilot
Cook
This defense is usually related to public safety. Courts have found that in employment which involves the public safety – bus drivers, pilots, police, and fire fighters – a BFOQ defense can stand.
Under the ADEA, there is no _______________ for age. Moreover, the condition of being over 40 is not a disability.
Reasonable accommodation
Discrimination protection
Discriminatory measures
Disqualifiers
Reasonable accommodation
From the text, “Under the ADEA, there is no “reasonable accommodation” for age. Moreover, the condition of being 40 years of age and older is not a disability.”
The EEOC states that an “employment practice is based on a _______ when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.”
RFOA
ADEA
EBRI
BFOW
RFOA
“Age discrimination may also be established when an employee shows that a facially-neutral company policy has a negative effect on employees covered by the ADEA. The employer defense to disparate impact claims is that a reasonable factor other than age (RFOA) prompted the employment practice.”
A nursing home decided to reduce costs by terminating its highest-paid and least-productive employees. To ensure that supervisors accurately assessed productivity and did not base evaluations on stereotypes, the employer instructed supervisors to evaluate productivity in light of objective factors such as the number of patients served, errors attributed to the employee, and patient outcomes. Which of the following is true of this example?
This action is not legal under the EEOC if it has a negative impact on older employees
This is illegal because it is designed to target older employees
Even if the practice did have a disparate impact on older employees, the employer could show that the practice was based on a RFOA
The legality of this action depends on if the employer is bound by the rules of a right-to-work state
Even if the practice did have a disparate impact on older employees, the employer could show that the practice was based on a RFOA
This example is the defendable example illustrated in Example 1 in section 4.4. The decisions were made based on objective factors unrelated to age
True or False. In unlawful age discrimination claims, the employer’s consideration of the harmful impact of an employment practice and its efforts to mitigate it will be relevant to a successful defense of the rule or policy.
True
Unlike the “business necessity test” in Title VII cases, under the ADEA when an employer makes a reasonable business decision impacting older workers, the employer is not required to search for a less-discriminatory practice for achieving the legitimate business purpose. The employer is not even required to show that it used each and every one of the considerations listed by the EEOC to establish the RFOA defense. However, the employer’s consideration of harmful impact of an employment practice, and its efforts to mitigate it, will be relevant to a successful defense of the rule or policy.
In general employment terms, what is a reduction in force (RIF)?
When a firm eliminates one or more positions as part of a strategic business plan to realign operations and/or reduce costs
When a firm tightens previously tight hiring standards
When the EEOC lightens discrimination standards
When a firm eliminates one misbehaving employee
When a firm eliminates one or more positions as part of a strategic business plan to realign operations and/or reduce costs
A RIF is a term applied to an employer procedure used to terminate employment positions caused by lost funding, change of work requirements, or the reorganization of a business operation.
Courts will find a RIF plan discriminatory if:
Downsizing is used as an opportunity to eliminate older workers
The selection of which employees will be terminated is based on subjective criteria
The RIF is initiated as pretext to avoid ADEA concerns
All of the above
All of the above
Courts will find a RIF plan discriminatory if downsizing is: 1) used as an opportunity to eliminate older workers; 2) based upon subjective criteria; or 3) employed as a pretext to avoid ADEA concerns. For example, in the scenario presented in the text, if LSK, Inc. fired a 60-year-old manager as part of its DVD plant restructuring, but then immediately hired a younger manager to carry out similar functions, the RIF would be seen as pretext for age discrimination. Similarly, if LSK, Inc. did not allow the older manager with more seniority to “bump” the younger one, it may have committed age discrimination. Likewise, age discrimination may have occurred if LSK, Inc. could not clearly define what criteria led to the firing of the 60-year-old over others.
The Supreme Court in Hazen Paper Co. v. Biggins held that a paper company’s decision to terminate an employee because his pension was about to “vest” was:
A violation of the EEOC
In violation of the ADEA
Not in violation of the ADEA
Illegal
Not in violation of the ADEA
The Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604, held that age and seniority are “analytically distinct” from each other in the ADEA context.
The ADEA was designed to eliminate practices based upon the negative and unsupported _______________ of reduced performance and competence.
BFOQ’s
Gender stereotypes
Age stereotypes
Race stereotypes
Age stereotypes
It was found that “age discrimination against older workers was prevalent, with the bulk of the problem stemming from employers setting arbitrary age maximums for hiring or from forced retirement based on unfounded concerns about older workers’ physical ability to perform.”
What is the purpose of the Older Worker Benefit Protection Act?
To protect older workers from potential abuse and to prevent circumvention of ADEA anti-discrimination protections
To protect older workers from being discriminated against in the employment decision process
To protect the spouses of older employees from losing benefits once the employee has passed on
None of the above
To protect older workers from potential abuse and to prevent circumvention of ADEA anti-discrimination protections
From the text, “Under OWBPA provisions, employers may offer retirement incentives to older workers as long as the terms and restrictions of the incentives are fully explained and assurances given that another more favorable plan will not be imminently forthcoming.”
In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called:
Rights waivers
OWBPA waivers
ADEA waivers
Yellow dog contracts
ADEA waivers
From the text, “In exchange for offering retirement incentives, employers require an assurance from the retiring employee that he or she will not make a personal claim against the employer under the ADEA, through so-called “ADEA waivers.””
True or False. The so-called ADEA waiver prevents a retiree from personally suing under the ADEA, but does not prevent him or her from making an age discrimination claim with the EEOC.
True
True. He or she can still make an age discrimination claim with the EEOC.
