AGE DISCRIMINATION IN EMPLOYMENT

As we grow older the realization that things will change is clear. Life as we once knew it is no longer and a new road has shown its head. What does this mean to you and me and what can we expect from society on this new adventure. Most people will experience a smooth transition from middle age to old age, but unfortunately some people will experience the harsh reality that others do not always deal in the most appropriate way with aging individuals. It is to these people that I address the issue of age discrimination in employment and attempt to create a lifeline for those who need answers and direction when life is treating them unfair.

Age discrimination in the workplace is prevalent even today. Many employers still don't question outmoded stereotypes about the declining abilities of older workers. They still wrongly assume that older workers cost more to train, are more likely to leave sooner, and that they are less up-to-date in their skills. In addition many older workers do not know their rights or how to pursue them. Consequently their jobs are unprotected, and proving age discrimination can be difficult even with the right guidance. Congress, as well as some states, in their wisdom has attempted to effectuate this guidance for our older generations.

Age discrimination in employment effects people everywhere. No one is exempt. Age discrimination has become known as discrimination in the workplace against people that are age 40 or older. Older workers have experienced a disadvantage in retaining and regaining employment regardless of their qualifications. Because of this Congress has developed and implemented numerous Federal Laws prohibiting job discrimination for which the Equal Employment Opportunity Commission (EEOC) enforces. Some of these are, Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin; the Equal Pay Act of 1963 (EPA), which protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination; the Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals who are 40 years of age or older; and finally the Civil Rights Act of 1991, which provides monetary damages in cases of intentional employment discrimination. The EEOC provides an oversight and coordination of all federal equal employment opportunity regulations, practices, and policies.

Thanks to the EEOC there are discriminatory practices that are prohibited and consequently punished if they are not followed. The mission of the EEOC is to promote equal opportunity in employment through administrative and judicial enforcement of the federal civil rights laws and through education and technical assistance. It is illegal to discrimination in any aspect of employment, including: hiring and firing; compensation, assignment, or classification of employees; transfer, promotion, layoff, or recall; job advertisements; recruitment; testing; use of company facilities; training and apprenticeship programs; fringe benefits; pay, retirement plans, and disability leave; or other terms and conditions of employment. Also included under these laws is harassment on the basis of race, color, religion, sex, national origin, disability, or age; retaliation against an individual for filing a charge of discrimination, participating in an investigation, or opposing discriminatory practices; employment decisions based on stereotypes or assumptions about the abilities, traits, or performance of individuals of a certain ... age. The EEOC requires employers to post notices to all employees advising them of their rights under the laws that the EEOC enforces and their right to be free from retaliation. For more information on the EEOC, see, http://www.eeoc.gov/. For definitions of terms used by the EEOC, see http://www.eeoc.gov/stats/define.html.

The EEOC is an independent federal agency originally created by Congress in 1964 to enforce Title VII of the Civil Rights Act of 1964. The EEOC consist of five Commissioners and a General Counsel appointed by the President and confirmed by the Senate. Commissioners are appointed for five-year staggered terms. The General Counsel serves for a term of four years. The President designated a Chairman and a Vice-Chairman. The Chairman is the chief executive officer of the Commission. The Commission has authority to establish equal employment policy and to approve litigation, while the General Counsel is responsible for conducting litigation. The EEOC has 50 field offices, which serve every part of the nation.

If you believe that you have been discriminated against by an employer, labor union or employment agency when applying for a job or while on the job and believe that you have been discriminated against because of your age you can file a charge with the EEOC. A charge of discrimination may be filed in person, by mail, or by telephone to the U.S. Equal Employment Opportunity Commission (EEOC). But, there is a strict time frame that must be adhered to. For the EEOC to act on your behalf and to protect your right to file a private lawsuit you must file with the EEOC within 180 days of the alleged discriminatory act. However, in states or localities where there is an antidiscrimination law and an agency authorized to grant or seek relief, a charge must be presented to that state of local agency first. In these jurisdictions you have 300 days to file with the EEOC from the date of the discriminatory act, or 30 days after receiving notice that the state or local agency has terminated it's processing of the charge, whichever is earlier. Unfortunately South Dakota does not have a statute such as this, so filing with the EEOC must be within 180 days from the alleged act. The EEOC does afford accommodation for any individual who needs help in filing this charge.

When filing a charge of discrimination certain information is required. This information includes: the complaining party's name, address, and telephone number; the name, address, and telephone number of the respondent employer, employment agency, or union that is alleged to have discriminated, and number of employees, if known; a short description of the alleged violation; and the date(s) of the alleged violation(s).

Once a charge of discrimination has been filed the EEOC notifies the employer that the charge was filed. From here a charge may be assigned for priority investigation, the charge may be selected for EEOC's mediation program, or a charge may be dismissed at any point if in the agency's best judgment, further investigation will not establish a violation of the law. In the case of a dismissal the EEOC will give notice to the charging party who then has 90 days in which to file a lawsuit on their own behalf.

If a priority investigation is substantiated it is because the facts appear to support a violation of the law. If a mediation program is chosen it is because both the charging party and the employer express an interest in this option. This is an alternative to a lengthy investigation. In addition, if the mediation is unsuccessful, the charge is returned for further investigation.

The EEOC reserves the right to settle a charge at any stage of the investigation if both the charging party and the employer express an interest to do so. The EEOC may also make written requests for information, interview people, review documents, and visit the facility where the alleged discrimination occurred.

When a violation of age discrimination is found against an employer the relief or remedies available to the charging party are numerous. These remedies include: back pay; hiring; promotion; reinstatement; front pay; reasonable accommodation; or other actions that will make an individual "whole" again. Other possible remedies may include payment of attorney's fees, expert witness fees, and court costs. In addition, if intentional discrimination is found compensatory and punitive damages may also be available. Punitive damages are not available against state or local governments.

The EEOC's administrative enforcement program effectively manages between 75,000 and 80,000 charges filed annually. As a direct result by the end of the fiscal year 1998 the EEOC's pending inventory was 52,011 charges, a decline of 53 percent from an all-time high of 111,345 in the third quarter of fiscal year 1995. In 1998 the Commission was successfully resolving charges at a faster pace than they were being filed thus further reducing the inventory. In 1998 the Agency obtained $169.2 million in monetary benefits for charging parties (excluding litigation awards) through settlement and conciliation. In addition, the EEOC has made substantial progress in the implementation of its mediation program. From the inception of the program in fiscal year 1996 through the end of fiscal year 1998, the EEOC resolved over 2,400 charges through mediation and obtained benefits of approximately $27.8 million for charging parties. One recent success case for the EEOC was an age bias settlement with Lockheed Martin (formerly Martin Marietta) for $13 million in back pay and 450 jobs for older workers who were dismissed.

http://www.eeoc.gov/

The federal Age Discrimination in Employment Act was implemented by the EEOC in furtherance of deterring age discrimination in the workplace in 1967. The ADEA forbids age discrimination by employers with at least 20 employees including state and local governments, employment agencies and to labor organizations, as well as to the federal government. The ADEA also prohibits employers from relying on an employee's age in hiring promotion, compensation, demotions, layoffs, and terminations. The ADEA's protections apply to both employees and job applicants. For a full recitation of the Act and its statement of findings and purposes please see http://www.eeoc.gov/ or 29 USCS §621.

In short, the ADEA purpose is to promote employment of older persons based on their ability rather than their age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment. The enactment of the ADEA was also to alleviate serious economic and psychological suffering of people between ages of 40 and 65 caused by widespread job discrimination against them and to prevent persons in this age group from having their carets cut off by unreasonable discrimination on account of age and finally, to aid workers in meeting impacts that come with age. The ADEA was designed only to attack those employers' personnel policies and practices which arbitrarily classify employees or potential employees on basis of age, and the Act does not seek to affect employers' decisions based on individual assessment of person's abilities, capabilities, and potential. The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. But, it is not unlawful to ask an applicant's age or date of birth. However, these inquiries may deter older workers from even applying for the job, and as a result these cases are closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather that for a purpose prohibited by ADEA.

               Section 4 of 29 USCS §621 states the following.

The ADEA also requires that every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice prepared or approved by the EEOC setting forth information, as the Commission deems appropriate to effectuate the purposes of this chapter.

There are some exceptions to the ADEA. For example airline pilots, air-traffic controllers, public safety officers (firefighters, judges, or prison guards) are exempt from the strict scrutiny of the ADEA. In these particular occupations there is still a requirement on retirement at the age of 55. Many wonder about the wisdom of this choice, as well. Consequently, when advertising for these positions or job notice it may specify an age limit in the rare circumstances where age is shown to be a "bona fide occupational qualification" reasonably necessary to the essence of the business. Why not just have a scrupulous and regular fitness testing for these workers as a condition of further employment? Given the physical and mental state of older individuals today, and the longevity of most Americans this policy seems ill advised. People are healthier and working longer than ever before. In addition given the financial obligations of most Americans it may not be feasible to even consider retirement. It is also believed that denying work to older people squanders the nation's productivity and does serious harm to our prospects for economic growth.

In addition to the exceptions, an employee or applicant may agree to waive his/her rights or claims under the ADEA at an employer's request. However there are minimum standards that must be adhered to for the waiver to be considered knowing and voluntarily made. Among these are: (1) the waiver must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider it. But, in the event that the waiver is for an exit incentive program or other employment termination program the minimum requirements for a valid waiver are more extensive.

Statistically there were 16,008 receipts of age discrimination filed with the ADEA in the year 2000, which equal 20% of all claims filed with the EEOC. Of these 14,672 were resolved. Of those cases resolved 1,156 were settled, 560 were withdrawn, 3,232 were administrative closure, 8,517 had no reasonable cause, 1,207 had reasonable cause, 241 had successful conciliations and 966 has unsuccessful conciliations. For a statistical breakdown of total number of charge receipts filed and resolved under the ADEA for other years, please see http://www.eeoc.gov/stats/adea.html.

Many states have passed their own age discrimination acts in an effort to minimize and control age discrimination under their own umbrella. Unfortunately, South Dakota is not one of the states that has chosen do so as of yet. The last legislative attempt to pass an act to prohibit discrimination based on age was in the Seventy-fifth Legislative Session of 2000. Bill number 1208 was introduced by Representatives Patterson, Chicoine, Lockner, and McIntyre and Senator Flowers. This bill would have expanded SDCL § 20-13-10 to include "age", along with race, color, creed, religion, sex, ancestry, disability or national origin. Unfortunately, this Bill was not acted on and thus for any remedial efforts a person who has a claim for age discrimination needs to file with the EEOC. South Dakota does have a statute that prohibits age discrimination for public officers and public employees. See SDCL § 3-6A-15.

Although South Dakota does not have its own statute on age discrimination in employment, there is still a list of caselaw available on the subject that was filed with the EEOC or the ADEA. A few that have been decided in the last few years consist of:

In addition to the many resources available on the internet there is a reference book called, West's Legal Forms on Elderlaw, written by Alan D. Lieberson, M.D., J.D., which has a vast amount of information that would be helpful for any lawyer who is thinking about taking on a claim of age discrimination in employment. This book gives a little history, checklists, questionnaire, and flow sheet for managing a claim, and a sample complaint for such a claim.

As stated prior, some states have implemented their own statutes to take care of any potential age discrimination in the workplace. One of our sister states, North Dakota has numerous statutes that apply in this case, with one in particular that is very similar to that of the ADEA. These statutes are, but not limited to: 1) NDCC 34-01-17, Unlawful to Discriminate because of Age; 2) NDCC 14-02.4-03, Employer's Discriminatory Practices; 3) NDCC 14-02.4-01, State Policy Against Discrimination; 4) NDCC 54-44.3-22, Limitations on Inquiries in Application or Test - Discrimination Prohibited; 5) NDCC 14-02.4-09, Seniority, Merit, or Other Measuring Systems and Ability Tests Not Discriminatory.

As North Dakota has numerous statutes that are applicable to the age discrimination in the workplace problem, so does Minnesota. Again, Minnesota has a statute that is similarly tailored to the ADEA. These statutes are, but not limited to: 1) MSA 181.81, Dismissal for Age; Prohibition; Exceptions; Remedies; 2) MSA 363.02, Exemptions; 3) MSA 363.12, Declaration of Policy; 4) MSA 363.03, Unfair Discriminatory Practices; 5) MSA 363.06, Grievances; 6) MSA 383B.41, Discrimination.

Age discrimination is common and has been accepted for a very long time. But, this doesn't make it okay or acceptable in this day and age. People need resources for recourse on matter such as this. As such the above is only a beginning of those resources and a fighting tool against employers who discharge, or fail to hire people based on their age. We can change the pattern of age discrimination in the workplace one case at a time.