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Discrimination in Employment Act (ADEA)
The ratio of older adults to younger adults is rising. And as the population changes, the workplace changes too. Some employees are choosing to work longer. Others are using their longer & healthier lifespan to pursue a second career. Still others find themselves in need of a job during a longer than expected retirement. As these changes occur, employers are increasingly faced with mới nhất challenges in employing older workers. It is now more essential than ever for employers to understand the laws prohibiting age discrimination in employment .
In 1967, Congress passed the Age Discrimination in Employment Act, commonly referred to as the ADEA, which protects individuals age 40 và older from discrimination in the workplace based on age. In 1990, Congress passed the Older Workers Benefit Protection Act, or ( Older Workers Benefit Protection Act, or ( OWBPA ), ), which amended the ADEA to prohibit employers from denying benefits to older workers. Together the ADEA & the OWBPA amendments comprise the federal law that protects older employees from workplace discrimination .
Both laws will be discussed below. Many states also have laws protecting workers against age discrimination in the workplace, Some state laws closely parallel the ADEA, but other states have enacted more restrictive age discrimination protections. Employers must ensure compliance with the laws of the states in which they operate, in addition to the ADEA và OWBPA .
The ADEA is separate và distinct from another principal law governing discrimination in employment – Title VII of the Civil Rights Act of 1964 – which protects individuals against discrimination on the basis of race, màu sắc, national origin, sex & religion. Certain aspects of Title VII và the ADEA are similar, but the two laws are not duplicative in every respect. To fully understand the reach of protections for older workers & the phối of laws governing age discrimination in the workplace, employers must familiarize themselves with both the general principles behind the ADEA & its specific provisions .
The ADEA explains the specific types of age discrimination & what type of related conduct falls outside of illegal age discrimination. It also discusses retaliation restrictions, age harassment và the legality of reverse age discrimination. It then explores several special considerations và chất lượng situations under the ADEA.
“ It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity & competence decline with age. ” – United States
Supreme Court in Hazen Paper v. Biggins .The ADEA applies to employers in industries affecting commerce with trăng tròn or more employees in the current or preceding calendar year. Leased employees, overseas employees & employees of integrated companies count for the đôi mươi employee threshold, but temporary employees bởi not .
The ADEA prohibits employers from discriminating against employees và applicants, who are 40 years old or older, based on age. Specifically, the ADEA makes it unlawful to discriminate against these persons because of their age with respect to any term or condition of employment, including hiring, firing, compensation, layoffs, promotions, compensation, benefits, job assignments và training .
This includes discrimination against an employee in favor of a worker who is under the age of 40, but it also prohibits discrimination against an individual in favor of a worker who is 40 years old or older, but younger than the employee claiming the discrimination .
For Example: Eileen, a 56-year old employee is refused a promotion. She may be able to show that her employer discriminated against her by promoting Paul, an employee who is 42 years old, even though Paul also falls within the protected age category established by the ADEA.
The following are examples of the type of conduct that violates the ADEA:
• A supervisor’s refusal to promote older employees because they are “too old” or assuming they will be retiring soon;
• A company-wide decision to lay off all older employees as part of an effort to promote a youthful company image & culture ;
• Implementing a health benefit program for retirees that reduces benefits at age 65 ; or
• Awarding bonuses to all employees under 35 years of age .
Types of Age Discrimination
Because the company values younger employees more than older employees. The ADEA also makes it unlawful to retaliate against an applicant or employee for conduct related to age discrimination. Protected conduct includes opposing a discriminatory employment practice, filing an age discrimination charge, or testifying or participating in an investigation, proceeding or litigation involving age discrimination .
The following acts are some examples of unlawful retaliation:
• Firing an employee because he complained that his supervisor did not consider him for a promotion because of his age ;
• Denying an annual bonus to employees because they testified in tư vấn of a lawsuit brought by a former employee claiming age discrimination .The ADEA prohibits two different types of discrimination disparate treatment và disparate impact. Disparate treatment discrimination occurs when an employer intentionally treats an employee or applicant 40 years old or older less favorably than a younger employee or applicant because of his or her age .
Disparate impact discrimination occurs when an employer implements or maintains a policy that has an adverse impact on employees 40 & older even though the policy or practice itself has nothing to vì with age .
Disparate Treatment
Under the ADEA, employers cannot treat employees 40 or older less favorably than younger employees because of their age. This means that you cannot refuse to hire, demote, fail to promote, fire, pay less, refuse to train, or provide reduced benefits to employees 40 & end because of their age. To understand how to avoid treating employees less favorably because of their age, it is helpful to look at the types of evidence that employees use to show age discrimination. The most obvious evidence that an employee might use to establish age discrimination is a decision-makers statement that he or she treated an employee adversely because of the employee’s age .
For example: Assume that John is a 52-year old employee who does not receive a promotion he was hoping for. He asks the manager who made the promotion decision for the reason, and is told the following: If you were 20 years younger, you would have had that promotion. But we needed to bring in some fresh ideas and connect with the younger part of our workforce.” This statement is direct evidence of age discrimination because it ties the negative treatment directly to the employee’s age.
But direct evidence rarely exists. The more common evidence of age discrimination is much more subtle. It often involves either negative comments made about or to older workers or favorable remarks made about or to younger workers, but not directly tied to the employment decision. This type of evidence is often referred to as circumstantial evidence because the underlying circumstances suggest that something is true, but bởi vì not directly prove that it is true. Comments lượt thích the following have been found to be circumstantial evidence of age discrimination :
• Claiming that the company “ should get rid of the old guys ; ”
• mức phổ biến to older workers as “ old farts, ” “ dinosaurs, ” “ geezers, ” or “ little old ladies ; ”
• Talking negatively about the “ graying of a department ; ”
• Commenting that “ old people should be seen và not heard ; ”
• mức phổ biến to the skills, approach or attitude of an older employee as “ old school ; ”
• Telling older employees that they “ need to retire ; ”
• Saying that the company would be better run by “ the younger guys ; ”
• Expressing an interest in “ refreshing ” the top executive pool ; &
• Criticizing the company for its “ old Trắng male culture. ”How strongly these types of comments might tư vấn an age discrimination claim depends on who says them, when they are said, where they are said, to whom they are said và how often they are said. Statements by a decision-maker are more likely to suggest that an adverse employment decision was based on age, particularly if the decision-maker is the one responsiblefor the adverse action. Comments made around the same phút giây as the adverse action are more likely to suggest that a decision was based on age than comments made years or months before the adverse employment decision. Comments made as part of company policies or in company meetings are also more likely to suggest an age bias than comments made outside of work or in a context that does not relate to work. The more frequent the comments are, the more they suggest a bias based on age. The age of the individual ( s ) who received the benefit denied to an older employee can also be evidence of age bias. The younger the age, the stronger the difference suggests age bias .
For example: Promoting a 25-year old over a 55-year old looks more like age discrimination than promoting a 54-year old over a 55-year old. The qualifications of the individuals involved in any employment decision also may evidence age discrimination. Hiring a younger, less qualified employee over an older more qualified employee looks more like age discrimination than hiring an equally qualified or more qualified younger employee over an older candidate.
Courts look at these types of facts in deciding whether employees might have legal claims against their employers for age discrimination. To even move forward with a claim, employees must show that they were at least 40 years old, qualified, suffered an adverse employment action, và that there is some additional evidence, such as the above examples, that shows age was a factor in the adverse action .
Disparate Impact
Employers may engage in unlawful age discrimination even without any conduct or action that shows discriminatory animus towards individuals 40 or older under a disparate impact claim. Disparate impact discrimination involves a policy or practice that is not about age, but has a disproportionate, negative effect on employees or applicants 40 or older. Policies that tend to have a disparate impact on employees kết thúc 40 are often those based on factors that have some correlation with age. The following types of policies tend to correlate with age và so sánh are more likely to have an adverse impact on individuals 40 or older :
• Policies based on seniority ;
• Policies related to retirement ;
• Policies focusing on the highest salary levels or pay rates ;
• Policies based on school graduation year ;
• Policies based on certain health conditions ; và
• Policies aimed at turnover in high-level executives .Until recently, it was not clear that the ADEA made disparate impact discrimination illegal. Disparate impact claims have always been unlawful under Title VII, the law that prohibits discrimination in employment based on race, màu sắc, national origin, sex & religion. But courts disagreed on the viability of disparate impact claims under the ADEA.
The United States Supreme Court ended the debate. In the case of Smith v. City of Jackson, Mississippi ¸ the Supreme Court ruled that the ADEA makes disparate impact discrimination unlawful. Not all disparate impact claims are the same, however. As the Supreme Court explained, disparate impact claims under the ADEA are different và more limited than disparate impact claims under Title VII .
Merely alleging an age imbalance in the workplace does not show age discrimination under a disparate impact theory. An imbalance could be due to numerous factors that have nothing to bởi with age. Nor is it enough to point to a generalized policy that leads to such a disparate impact on older workers. Instead, an employee must isolate & identify specific employment practices responsible for the disparate impact. In addition, disparate impact age discrimination can only exist where there are statistically significant disparities between older & younger workers .
Reasonable Factors Other Than Age (RFOA)
Age-based comments or practices that adversely affect older employees vì not always establish claims for age discrimination. Employers can, và indeed, often must take disciplinary action against someone who is 40 years of age, or older. The ADEA only prohibits adverse action because of age. In the disparate treatment context, that means that you can take adverse action against employees 40 và kết thúc if the adverse action is based on reasonable factors other than age .
You can promote candidates under age 40 in preference end an older employee for legitimate reasons other than age superior experience, quality skills or other work-related qualifications. Likewise, you can discipline or terminate an employee who is in the protected nhóm if there is a job-related reason for doing so sánh. Proper reasons include those reasons that might justify discipline or termination of any other employee, including :
• Poor performance ;
• Excessive tardiness or unexcused absences ;
• Violation of a no-call, no-show policy ;
• Failure to meet quotas or inability to meet deadlines ;
• Losing clients or accounts ;
• Failure or refusal to follow management’s instructions or directions ;
• Violation of company rules ;
• Sleeping on the job ; or
• Refusing to work scheduled hours .In short, you can and should hold employees in the protected age group to the same standards, conduct and work rules as younger employees. Just as circumstantial evidence can show age discrimination, it can also refute any suggestion of age discrimination.
Non-Discriminationtory Employment
The manager’s later, adverse treatment of the same employee had nothing to vì with age. Having a significant number of other employees in the same position or department who are close in age to the employee who is treated adversely will also help show that the treatment was not based on age .
Even if an employer has a legitimate reason to treat an older employee differently, it may still be illegally discriminating against an employee if it had a legitimate ground for the adverse action but did, in part, carry out the adverse action because of an age bias. The ADEA allows these “ mixed motive ” cases, meaning that an employer may still violate the ADEA if it treats an older employee less favorably partly based on a lawful reason, but also partly based on the applicant’s or employee’s age .
In the disparate impact context, the ADEA và Older Workers Benefit Protection Act, ( OWBPA ), bởi vì not prohibit employers from establishing & implementing policies that adversely affect older employees where they are based on reasonable factors other than age. For example, you can establish a policy to cut costs when necessary by trimming employee salaries even if the policy adversely affects older workers by cutting their salaries more significantly. The motivation behind the policy is to cut costs in a phút giây of financial need, ( a reasonable factor other than age ) not to discriminate based on age .
Title VII uses a more difficult demo to satisfy. Under Title VII, if a policy is challenged as having a disparate impact, the employer must show that there are other ways to achieve its goals that bởi not result in a disparate impact on protected employees. The RFOA kiểm tra requires no such thing. In the above example, the employer does not have to prove that there are no other ways to cut costs. Cutting costs alone is a reasonable factor other than age, even if there are other ways of achieving the same result .
Even though the RFOA reasonable factors kiểm tra is broad, not all factors are reasonable factors other than age. Courts will look carefully at the reason for an employer’s policy to make certain it is not unreasonable. Employers should ensure that a lawful & reasonable factor other than age is motivating the decision .
Bona Fide Occupational Qualifications (BFOQ)
The ADEA also recognizes that in limited circumstances, age may be a legitimate reason to treat employees or applicants differently. The legal term for this is a bona fide occupational qualification or BFOQ. An employer does not violate the ADEA by treating applicants or employees differently because of age if it can show that age is a bona fide occupational qualification of the job .
But showing that age is a legitimate job qualification is not as easy as it may sound. You may only use age as a job qualification if the age limit is reasonably necessary to business operations & either một ) almost all of the individuals who bởi vì not satisfy the age-qualification are actually incapable of doing the job or 2 ) the only way of determining that some individuals arenot capable of doing the job is by using an age-qualification .
Knowing that the ADEA prevents employers from discriminating against older workers in favor of younger workers begs the question of whether the opposite is true. Can employers treat employees who are older more favorably than younger employees because of their age under the ADEA ?
The ADEA is designed as a remedy for unfair preference based on relative youth, not relative age. It protects older workers against younger workers, but does not protect younger workers against older workers. And that is true even if the younger employees are end the age of 40 & thus within the protected age nhóm .
The ADEA does not require employers to prefer older individuals, & it does not affect applicable state, municipal, or local laws that may prohibit such preferences. When most employers think of harassment, they think of sexual harassment. But employers are seeing more và more claims of harassment based on other protected categories ( i. e. race, ) .
Reverse Age Discrimination
màu sắc, age, national origin và religion & harassment occurs when an employee experiences age-biased words or actions that are unwelcome, offensive và so sánh severe or pervasive that they alter the employment conditions và create an abusive or intolerable working environment .
No adverse action is required to show hostile work environment harassment based on age, only a showing of actions or conduct causing a hostile work environment. The same type of comments & conduct that tư vấn claims for age discrimination can also tư vấn a claim for age harassment .
Age harassment claims are still less frequent than other types of harassment claims và it is not entirely clear that the ADEA allows them. As with Title VII, the ADEA does not specifically reference harassment, only discrimination. However, some courts have allowed age harassment claims under the ADEA. In addition, several state statutes specifically prohibit harassment based on age. Employers should therefore be aware that even if an employee, ADEA. Because they usually involve does not suffer an adverse employment action because of his or her age, he or she may still be able to sue the employer for age harassment based on age-biased comments và conduct .
As with all discrimination laws, the ADEA would not be complete without another type of protection for employees protection against retaliation. In general, retaliation provisions under any discrimination statute encourage employees to báo cáo unlawful acts & to exercise their rights under the law .
Employers cannot fire or take any adverse action against employees who complain about age discrimination. Nor can you take any action against an employee who files an administrative charge, arbitration claim or civil lawsuit against an employer for age discrimination. The ADEA makes it illegal to retaliate against an employee or applicant for testifying or participating in an investigation, proceeding or lawsuit involving age discrimination, whether brought by the employee or another employee .
Retaliation
Older Workers Benefit Protection Act, ( OWBPA ) specifically prohibits employers from denying benefits to older workers. An employer may reduce benefits for older workers only if the cost of providing the reduced benefit to older workers equals the cost of providing the same benefit to younger workers .
Early Retirement Plans
Under the ADEA, employers cannot require employees in a certain age group to retire because of their age. That means that having a seniority system or a benefits plan that forces older employees to retire violates the ADEA.
An employer can have an early retirement program that is completely voluntary & is offered to keep costs xuống dốc. But be careful in using và carrying out any voluntary retirement kế hoạch. There is always a danger that what an employer thinks is voluntary, is structured và presented in such a way that employees feel it is involuntary. There is also a significant exception to this general rule .
The ADEA allows employers to implement mandatory retirement plans for a select nhóm of individuals who are otherwise protected. It allows compulsory retirement plans for employees who are 65 – years old, employed in bona fide executive or higher policymaking positions & are entitled to an immediate, non-forfeitable annual retirement benefit from the employer that equals at least USD 44,000. The benefit can be from a pension, profit-sharing, savings, or deferred compensation kế hoạch, or any combination of plans. A single kế hoạch does not have to provide the USD 44,000. Several plans together can provide the $ 44,000 .
Reductions in Force
Reductions in force pose a unique situation under the large-scale layoff, it is more difficult to establish that any reduction of an employee was based on age. However, there is no wholesale exclusion from the ADEA for adverse actions made as part of a reduction-in force. Rather, the same general prohibitions against age discrimination apply. This means that even if transfers or lay-offs are part of a reduction-in-force, they are unlawful under the ADEA if age was a motivating factor in the decision, just as with any other age discrimination claim under the ADEA.
Settlement/Severance Agreements
Most severance và settlement agreements contain a general release. Usually the release is a lengthy paragraph where the employee agrees not to sue the employer & to give up anylegal claims he or she might have against the company. OWBPA adds special requirements for any release of rights under the ADEA.
Employers incorporating a release as part of a severance or settlement agreement must adhere to the following requirements:
• The waiver of ADEA rights ( or release ) must be in biên tập và understandable to the average person ;
• The waiver must specifically refer to ADEA claims ;
• The employee cannot waive the right to claims that occur after the employee signs the agreement ;
• The release must be supported by a benefit that the employee is not already entitled to ( e. g., cannot ask for a release of ADEA claims in exchange for COBRA benefits since the employee is already entitled to COBRA benefits ) ;
• Employees must be advised in biên tập to talk to a lawyer before signing the agreement ;
• Employees signing an individual agreement must have 21 days to consider a proposed written release ; và
• Employees must have 7 days to revoke the agreement once they sign it .Thes e last two provisions often cause some confusion. To comply with these provisions, an employer must leave the settlement or severance offer open for 21 days. But the employee is không lấy phí to sign the agreement before the 21 – day period expires. Once the employee signs the agreement – whether on the first day of the 21 – day open acceptance period or the twenty-first day the employee must be given 7 days to change his or her mind. Because of this 7 – day waiting thời gian period requirement, severance or settlement agreements for individuals 40 or older must be drafted so sánh that they bởi vì not become effective until after the 7 – day waiting period has passed .
Guidelines for Avoiding Lawsuits
Employers seeking a waiver of ADEA rights as part of an exit incentive or other employment termination program offered to a nhóm or class of employees must comply with slightly different requirements. Under those circumstances, you must provide employees with 45 days instead of 21 days to consider the agreement. And you must provide the following disclosures to the employees in the nhóm at the beginning of the 45 day offer period :
• The class, unit or nhóm of individuals covered by the program ;
• Any eligibility factors for the program ;
• Any applicable phút giây limits for the program ;
• The job titles & actual ages of all individuals eligible or selected for the program ; &
• The ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program .Failure to comply with OWBPA’s requirements can invalidate the ADEA release. It is one thing to understand what the ADEA says. But it is another thing to understand what the ADEA means for your day-to-day operations & to understand how even seemingly small actions & words can lead to large issues of age discrimination. Although no text could possibly address the countless situations where ADEA concerns come into play, the following practical guidelines provide some context for how the ADEA affects employment decisions và the workplace .
Job Postings and Advertisements
Under the ADEA employers cannot include age preferences, limitations or specifications in job notices or advertisements. The italicized words và phrases are examples of job language to avoid because they may suggest an intent to discriminate based on age :
• “ Looking for motivated, young self-starter ! ”
• “ Only under age 35 need apply. ”
• “ Position for individual age 25-35. ”
• “ It’s any girl’s dream job … ”
• “ Youthful face needed for customer relations. ”
• “ The perfect job for mới nhất high school or college graduates. ”
• “ Delivery boy wanted. ”You should also avoid words & phrases that focus on employees under a certain age even if they are end 40, because the ADEA also protects against age discrimination within the protected class of employees. The words or phrases are potentially problematic for that reason :
• “ Applicants between age 40 to 50 only. ”
• “ Having a midlife crisis ? Ready for a career change ? ”
• “ If your kids have just left for college và you’re ready to return to work, this is the job for you ! ”
Job Applications and Interviews
Contrary to popular belief, the ADEA does not absolutely bar an employer from asking job applicants how old they are or what their birth date is. But there are at least three reasons why you should not ask for such information. First, such inquiries are closely scrutinized by the EEOC. Second, asking about age may dissuade older workers from applying for a position. Third, it is difficult to discriminate against someone based on their age if you bởi vì not know what the applicant’s age is. Limiting age-related inquiries is consistent with a more general rule for applications và interviews – ask the question you need the answer to, not just any question that will give you an answer .
The most obvious question to avoid on applications & in interviews is how old an applicant is. Avoiding age-based questions also means you should not ask for birth dates. You bởi need to know how old someone is to determine if they are legally able to work. But while that’s true, learning that information does not require asking an applicant how old they are only if they are end 18. Applicants can answer that question with a simple “ yes ” or “ no, ” without revealing their age .
Any other questions that would tend to reveal age are equally problematic. Instead of asking when someone graduated from high school, simply ask whether someone graduated from high school. Asking when someone graduated from high school is a question that will give employers the answer, but will also reveal information that employers bởi not necessarily want to know .
On-The-Job Comments
You should also avoid age-biased comments in the workplace. Even a few offhand comments based on age may create an inference of age discrimination. This is especially true if the comments are critical of older employees. But it is also true of comments that praise youth or younger workers. The problem with both types of comments is that they show both an awareness of age & an age-related preference. While stereotypes are difficult to ignore, ensuring that decision – makers recognize the risks of stereotyping older employees will help avoid age discrimination .
For Example: Bill is a supervisor. He is convinced that older employees are not technologically savvy or inclined. As a result, Bill assumes that Jeffrey, age 61, is not interested in attending a new computer training session and does not invite him.
By giving in to stereotypes about older workers, the supervisor has now denied the older employee a job benefit. But there is another problem. Without the skills from the training, the older employee may have a difficult phút giây completing computer related tasks as quickly as the younger employee who did attend the training. A simple stereotype about an older worker has now led to a much larger problem .
Changes in Company Identity and Culture
Problems also often arise when employers try to reinvent or change company identity or culture. There are numerous reasons why employers push for a company image or culture change. They may want to promote innovation, improve efficiency, recruit mới ra talent, boost morale, break lao dốc formal barriers, harmonize the work environment, modernize company policies và practices or motivate employees. But the descriptions companies tend to use to describe the types of changes often include words lượt thích young, youthful, fresh, mới nhất, cool, progressive, cutting edge, forward-looking, evolutionary, modern, liberal, hip or contemporary .
Many of these words have strong connotations of youth. Because of these associations, employees who are treated adversely during such a culture shift are likely to feel that the treatment is based on their age. Often without realizing it, the employer has opened the door to an age discrimination claim. To avoid this problem, use caution in deciding how to convey a culture shift. Any company memos, strategies & business plans seeking to implement such changes should be carefully drafted to avoid ostracizing older employees or encouraging managers or supervisors to take any action against older employees .
Adverse Action Decisions
Employers should treat employees 40 và older the same as they would any other employees. The same performance standards should apply. The same work rules should apply. And employers should conduct the same evaluations for purposes of promotions, training và mới ra opportunities with older employees as they vì with younger employees. While it may be difficult not to think about how soon an employee may be retiring, how long they could work for the company, or how they might compare to a younger worker, you must avoid allowing any such considerations to affect your employment decisions. Take all steps necessary to ensure that an employee who complains about age discrimination, files a complaint or claim of discrimination or otherwise participates in a lawsuit, charge or investigation of age discrimination is not retaliated against. To avoid problems, you should determine if the employee has recently made any complaints, particularly about age discrimination, before taking an adverse action against an employee. If so sánh, then ensure that the adverse action is not being made because of such complaints .
Increasing awareness about age discrimination in employment & recognizing the situations where age discrimination often arises you can avoid both actual age discrimination & any unintended appearance of age discrimination. Doing so sánh ensures that your workplace is a friendly environment for all workers no matter how young or old they may be .
Frequently Asked Questions (FAQ’s) on Age Discrimination in Employment:
The Age Discrimination in Employment Act ( ADEA ) prohibits employers from discriminating against individuals aged 40 và older based on their age. The ADEA prohibits discrimination related to all aspects of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, & any other term or condition of employment .
Q. : Which employers are covered by the ADEA ?
A : The ADEA applies to employers with đôi mươi or more employees, but some states have enacted similar laws that cover employers with fewer employees. Check your state law to ensure compliance .
Q. : Which individuals are protected from age discrimination ?
A : The ADEA protects applicants và employees who are aged 40 & older, but some states protect younger workers .
Q. : Can my company limit jobs to individuals under a certain age ?
A : In general, an employer may not exclude workers end the age of 40 from a job because of their age. In very rare cases, age limits may be permitted as a bona fide occupational qualification ( BFOQ ) under the ADEA. An employer asserting that a BFOQ exception applies has the burden of proving, among other things, that the age limit is reasonably necessary to the essence of the business. For example, if the employer’s objective in asserting a BFOQ is the goal of public safety, the employer must prove that it results in the intended objective & that there is no acceptable alternative that would better advance it or equally advance it with less discriminatory impact. Employers should always consult legal counsel when determining whether a BFOQ exception applies .
Q. : May I limit jobs to individuals end a certain age ?
A : Employers may have minimum age requirements for jobs. In fact, minimum age requirements may be phối by various federal và state laws designed to protect minors from hazardous work .
Q. : May I ask job applicants for their age ?A: Employers should avoid asking for an applicant’s age during the hiring process, including on job applications and during interviews. If there are minimum age requirements, the employer may ask whether the individual meets that requirement without asking for a specific age. For example, for a job from which minors are excluded, the employer may ask “Are you at least 18 years old?”
Q. : Can my company offer better benefits to older workers than to younger ones ?
A : The ADEA does not prohibit an employer from favoring an older worker end a younger one, even if both workers are age 40 or older. As mentioned above, state law may protect younger workers from discrimination, so sánh employers should kiểm tra their state law .
Q. : Are there special considerations for laying off employees who are age 40 & kết thúc ?
A : Yes. An employer’s decision to lay off certain employees while retaining others may lead discharged workers to believe that they were discriminated against based on their age or other protected characteristics. Employers implementing layoffs sometimes choose to present their separated employees with severance agreements that require the separated employees to waive their rights to bring action against the employer, in exchange for monetary compensation. In 1990, Congress amended the ADEA by adding the Older Workers Benefit Protection Act ( OWBPA ) to clarify the prohibitions against discrimination based on age. OWBPA establishes specific requirements for waivers of ADEA claims in severance agreements .
Q. : What does the OWBPA require ?
A : The OWBPA requires that the waiver be ” knowing & voluntary ” to guarantee that an employee has every opportunity to make an informed choice about whether to sign it .
Q. : What constitutes a ” knowing và voluntary ” waiver ?
A : The OWBPA lists seven factors that must be satisfied for a waiver of age discrimination claims to be considered ” knowing & voluntary. ” Thes e are :
- A waiver must be written in a manner that can be clearly understood .The Equal Employment Opportunity Commission’s ( EEOC ) regulations emphasize that waivers must be drafted in plain language geared to the màn chơi of comprehension và education of the average individual ( s ) eligible to participate. Usually this requires the elimination of technical jargon & long, complex sentences. In addition, the waiver must not have the effect of misleading, misinforming, or failing to inform participants & must present any advantages or disadvantages without either exaggerating the benefits or minimizing the limitations .
- A waiver must specifically refer to rights or claims arising under the ADEA .EEOC regulations specifically state that an OWBPA waiver must expressly spell out the Age Discrimination in Employment Act ( ADEA ) by name .
- A waiver must advise the employee in biên tập to consult an attorney before accepting the agreement .It is not sufficient for the release to simply state that the employee had a chance to consult with an attorney, rather the employee must acknowledge that they were advised to consult with an attorney .
- A waiver must provide the employee with at least 21 days to consider the offer .The regulations clarify that the 21 – day consideration period runs from the date of the employer’s final offer. If material changes to the final offer are made, the 21 – day period starts end .
- A waiver must give an employee seven day to revoke his or her signature .The seven-day revocation period cannot be changed or waived by either các buổi tiệc nhỏ for any reason .
- A waiver must not include rights và claims that may arise after the date on which the waiver is executed .This provision bars waiving rights regarding mới nhất acts of discrimination that occur after the date of signing, such as a claim that an employerretaliated against a former employee who filed a charge with the EEOC by giving an unfavorable reference to a prospective employer .
- A waiver must be supported by consideration in addition to that to which the employee already is entitled .
Q. : Are the waiver requirements the same for nhóm layoffs involving employees age 40 & end ?
A : There are additional requirements for when employers decide to reduce their workforce by laying off or terminating a nhóm of employees. When a waiver is offered to two or more employees about ” exit incentive programs ” or ” other employment termination programs, ” an employer must : một ) meet the ” knowing & voluntary ” requirements above và 2 ) provide enough information about the factors it used in making selections to allow employees who were laid off to determine whether older employees were terminated while younger ones were retained. In addition, the employer must give each separating employee at least 30 days to consider the waiver before signing it .
Q. : What terms should be avoided in severance agreements ?
A : Agreements should not ask employees to waive their rights to tệp tin a charge, testify, assist, or cooperate with the EEOC or to waive any rights or claims that may arise after the date the employee signs the waiver. In addition, the agreement should not ask employees to release claims for unemployment compensation benefits, workers compensation benefits, claims under the Fair Labor Standards Act, health insurance benefits under the Consolidated Omnibus Budget Reconciliation Act ( COBRA ), or claims about vested benefits under a retirement kế hoạch governed by the Employee Retirement Income Security Act ( ERISA ). It is a best practice to consult legal counsel when drafting severance agreements .
Source: https://meopari.com
