Labor and Employment Law blog

Are There Any Employment Situations That Are Exempt From the ADEA?

Yes, there are certain employment situations that are exempt from the Age Discrimination in Employment Act (ADEA). Here are six such situations.

1. Whe age is a bona fide job qualification reasonably necessary to the normal operation of a particular business (i.e. modeling clothes for teenagers).
2. When the differentiation is based on reasonable factors other than age, such as the use of stringent physical requirements necessitated by the nature of the work, ADEA prohibitions do not apply.
3. When differentiations are based on the terms of a bona fide seniority system or any bona fide employee benefit plan, such as a retirement, pension, or insurance plan, the actions are exempt from the ADEA.
4. Another exception to the prohibition on mandatory retirement at any age covers state and local governments with mandatory retirement ages for firefighters and law enforcement officers.
5. When an individual has, for a two-year period prior to retirement, been employed in a bonafide executive or high policy-making position, and is entitled to an immediate, nonforfeitable, annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan which equals at least $44,000, then compulsory retirement at 65 is not prohibited.
6. When there is a bona fide apprenticeship program, which has been traditionally limited to training younger persons for skilled employment, the ADEA prohibitions do not apply.

As in all applicable cases, the employer asserting any of these defenses has the burden of showing that the age limit is reasonably necessary.

Some Important Guidelines Regarding National Origin Discrimination

The Equal Employment Opportunity Commission (EEOC) broadly defines national origin discrimination as including, but not limited to, the denial of equal employment opportunity because of an individual's place of origin, or because an individual has the physical, cultural, or linguistic characteristics of a national origin group.

The Commission will examine, with particular concern, denied opportunity for reasons that are grounded in national origin considerations such as:

• marriage to, or association with, persons of a national origin group;
• membership in or association with an organization identified with, or seeking to promote the interests of national origin groups;
• attendance or participation in schools, churches, temples, or mosques generally used by persons of a national origin group; or
• because an individual's name or spouse's name is associated with a nation origin group.

The "speak English only" rule: The Commission will presume that a rule requiring employees to speak only English at all times in the workplace may violate Title VII as a burdensome term and condition of employment. Requiring employees to speak only in English at certain times would not be discriminatory if the employer shows that the rule is justified by business necessity.

Accent: The Commission has determined that an employer must show a legitimate non-discriminatory reason for the denial of employment opportunity because of an individual's accent or manner of speaking. Requirements that employeees or applicants be fluent in English may also violate Title VII.

Harassment: The Commission has consistently held that harassment on the basis of national origin is a violation of Title VII. It holds that an employer has an affirmative duty to maintain a working environment free of harassment on the basis of national origin.

For more in-depth information on this subject, we suggest you visit the EEOC website regarding Title VII National Origin Discrimination. To do so, please click here.

New EEOC Manual Offers Guidance on Religious Discrimination

[Excerpts from a special article written by Louis P. DiLorenzo, Esq.]

On July 22, 2008, the Equal Employment Opportunity Commission (EEOC) issued a new Compliance Manual on Religious Discrimination. The Manual is composed of five main sections:

1. defining coverage,
2. explaining how employment decisions may impact disparately on a person's religious beliefs,
3. describing various forms of harassment,
4. defining reasonable accommodation, and
5. defining undue hardship, common methods of accommodation and related forms of discrimination.

Religion is a sole protected category under Title VII of the Civil Rights Act which requires reasonable accommodation. Employers must accommodate an employee's sincerely held religious beliefs, observances and practices when requested, unless accommodation would impose an "undue hardship on business operations." An employee is obligated to make the employer aware of a need for religious accommodation and that it is being requested due to a conflict between religion and work. The employee is also obligated to explain the religious nature of the belief or practice at issue.

Similarly, the employer should ask the employee to explain the religious practic and work conflict. As stated by the Manual, a "failure to confer with the employee is not an independent violation of Title VII but, as a practical matter, such failure can have adverse legal consequences.

The employer is not obligated to provide an employee's preferred religious accommodation. The accommodation need only be "reasonable," and reasonableness is determined on a case-by-case basis. Courts have found undue hardship where an accommodation:

• diminishes job efficiency,
• infringes on other employees' job rights or beliefs,
• impairs workplace safety, or
• causes co-workers to carry the accommodated workers share of burdensome work.

Common methods of religious accommodation include scheduling changes, voluntary substitutes and shift swaps, changes in job tasks and lateral transfers.

A complex challenge to an employer is accommodating expressions of religious beliefs within the workplace. To determine whether such actions should be permitted, the employer must determine whether they pose an undue hardship.

Religion is very broadly defined as "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views" and does not require a belief in a god. Title VII only requires accommodation to those religious beliefs that "are sincerely held." The Manual warns employers to "ordinarily assume that an employee's request for religious accommodation is based on a sincerly-held religious belief." And in that regard, an Employer should not make assumptions about the legitimacy of a claimed religious practice or belief.

[Mr. DiLorenzo is a Senior Partner at Bond, Schoeneck & King, PLLC and Chair of it Labor & Employment Benefits & Executive Compensation and Immigration Practice Group.]

New Federal Law Bans Genetic Information Discrimination In The Workplace

[Excerpts from article written by Bond, Schoeneck & King, PLLC]

On May 21, 2008, President Bush signed the Genetic Information Nondiscrimination Act of 2008 prohibiting employers, group health plans, and entities that issue group health insurance from discriminating on the basis of genetic information. The law also prohibits group, state-regulated, and individual health insurance plans from basing eligibilty or premium determinations on genetic information. If you are unfamiliar with this new law, here are some of the highlights.

The law, know as GINA, takes effect on November 21, 2009 (May 21, 2009 for health insurance plans), and makes it an unlawful employment practice for employers with 15 or more employees, employment agencies, labor organizations, and training programs to refuse to hire any applicant, or to discharge or otherwise to discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment, based on the individual's genetic information.

With just a few exceptions, GINA also makes it unlawful for employers to request, require, or purchase genetic information about an employee or family members of an employee. The limited exceptions include:

• inadvertently requesting or requiring family medical history for health or genetic services offered by the employer,
• requesting or requiring family medical history for purposes of complying with certification requirements of the Family Medical Leave Act (FMLA) or state family and medical leave laws, and
• genetic monitoring of the biological effects of toxic substances in the workplace, when required to do so by law and under specific conditions.

In the event a covered employer lawfully or inadvertently acquires genetic information of an employee, the employer must apply the same confidentiality protections for genetic information that are applicable to medical information protected un the American with Disabilities Act (ADA). In particular, the genetic information must be kept in a separate file, treated as a confidential medical record, an may be disclosed to third parties only in very limited circumstances.

To read the complete Bond, Schoeneck & King article, click here.

Beware Of Stray Remarks

We recently came across an excellent article written by Louis DiLorenzo about a workplace issue that occurs more often than one would imagine. Here's the article.

Conventional wisdom has been that isolated or "stray remarks" by an employee are not alone proof of discriminatory intent. A recent Second Circuit case has clarified what it deemed a misconception of the term stray remarks. In this case, the plaintiff was a supervisor at an apartment complex. When terminated, she claimed it was due to her age. As proof of her claim, she pointed to conversations her supervisor began with "in your day and age." The claim was that these remarks recognized she was able to relate to the senior citizen residents. The District Court granted summary judgement finding the age-related comments were stray remarks.

The Second Circuit reversed, saying the appropriate standard is not whether they are "stray", but rather whether they evidenced a discriminatory state of mind (i.e. age discrimination). The closer the remark to the alleged discriminatory behavior, both in time and subject matter, the more proof it provides. Therefore, remarks not proximate in time, not made by the decision-maker or unrelated to the adverse action are less related to the decision and may not be proof.

Cautious employers can learn much from the stray remark case.

1. Supervisors and managers must be trained not to make comments, jokes or send e-mails that relate to protected characteristics, or tolerate those who do.
2. Supervisors and managers must understand their role as agents in the organization and that their words or deeds can legally bind the employer. In addition, they need to understand the importance of setting a good example.
3. If inappropriate comments or jokes have been told, verabally or in writing, an investigation must be conducted and appropriate action taken against the offender.

Be careful out there!

[Note: Mr. DiLorenzo is a senior partner at Bond, Schoeneck & King, PLLC, and Co-Chair of its Labor and Employment Law Department. He maintains offices in the firm's Syracuse, NY headquarters and New York City.]

Age Discrimination - Two Trouble Spots For Employers

The Age Discrimination in Employment Act (ADEA) prohibits discrimination because of age in such matters as employee hiring, job retention, compensation, and other terms, conditions, and privileges of employment. In regard to employee hiring, there are two traditional trouble spots that employers should be aware of. The first is "help wanted" advertisements; the second is employment application forms.

However, EEOC regulations can provide some useful guidance.

Help Wanted Ads

When help wanted notices or advertisements contain terms such as "age 25 to 35," "young," "college student," "recent college graduate," or other phrases of a similar nature, such terms or phrases can deter the employment of older persons and their usage is a violation of the Act, unless an employer can provide a justifiable exeception. Similarly, such phrases as "retired person" or "supplement your income" can also discriminate against others in a protected group. The language used in help wanted ads needs to scrutinized carefully by employers to avoid the appearance of discrimination.

Employment Applications

A request on the part of an employer for information such as "date of birth" or "state age" on an employment application form is not, in itself, a violation of the Act (Note: Various state anti-discrimination statutes may make such pre-employment inquiries illegal.). But because the request that an applicant state his or her age may tend to deter older applicants or otherwise indicate discrimination based on age, employment application forms which request such information will be closely scutinized by equal employment watchdogs to assure that the request is for a permissible purpose.

The EEOC recommends that an application form contain language to the following effect:

"The Age Discrimination in Employment Act of 1967 prohibits discrimination on the basis of age with respect to individuals who are over 40 years of age."

Many report cases to the EEOC involve inappropriate comments made to an applicant that relate to age. For example, the word "overqualified" in conversations with applicants in the protected group has been ruled to be an age-related code word. The sound practice is to avoid telling someone they are overqualified.

Similarly, comments made to an applicant indicating the he or she was not hired because they were too "highly compensated" can create potential age discrimination issues.

Training supervisors and managers who hire and interview applicants in what they should and should not say is always a wise decision and may eliminate unnecessary employment issues that involve older job applicants.

John Philips has a great article on basic safeguards for hiring. It's worth a read. In fact, he write a great blog with lots of good articles and information. Also the AARP has an excellent article that does a great job explaining the Age Discrimination in Employment Act.

In our next post, we'll identify some of the exceptions to the ADEA rules.

Frequently Asked Questions Relating To Pregnant Employee Rights

The Pregnancy Discrimination Act of 1978 makes it clear that discrimination on the basis of pregnancy, childbirth or related medical conditions constitutes unlawful sex discrimination under Title VII. The basic principle of the Act is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.

Yet, often when employers are faced with a pregnant employee issue, they often have more questions than answers as to the appropriate action to take. Here are six of the most commonly asked questions (with answers) voiced by employers.

1. If, for pregnancy-related reasons, an employee is unable to perform the functions of her job, does the employer have to provide an alternative job? An employer is required to treat such an employee who is temporarily unable to perform the functions of her job in the same manner as it treats other temporarily disabled employees. This could include providing modified work tasks or alternative assignments, disability leave and leave without pay.
2. Must an employer hold open the job of an employee who is absent on leave because she is temporarily disabled by pregnancy-related conditions? Unless the employee on leave has informed the employer that she does not intend to return to work, her job must be held open for her return on the same basis as jobs are held open for employees on sick or disability leave for other reasons.
3. Must an employer hire a woman who is medically unable, because of a pregnancy-related condition, to perform a necessary function of a job? No. An employer can refuse to hire the applicant under those conditions.
4. For what length of time must an employer who provides income maintenance benefits for temporary disabilities provide such benefits for pregnancy-related disabilities? Benefits should be provided for as long as the employee is unable to work for medical reasons unless some other limitation is set for all other temporary disabilities.
5. Can an employee who is absent due to a pregnancy-related disability be required to exhaust vacation benefits before receiving sick leave pay or disability benefits? If employees who are absent because of other disabling causes receive sick leave pay or disability benefits without a requirement that they first exhaust vacation benefits, the employer cannot impose this requirement on an employee for a pregnancy-related cause.
6. If an employee has been absent from work as a result of a pregnancy-related condition and recovers, may her employer require her to remain on leave until after her baby is born? No. An employee must be permitted to work at all times during pregnancy when she is able to perform her job.

Although these answers may appear to be straight forward, employers and managers still are prone to making decision errors based on what they "perceive" to be correct. An article by James Peters illustrates this point, and is worth reading. A good website you may want to visit is Findlaw.com. Here you'll find links to the specific federal statutes and will as other FAQs of interest.

Some Things To be Aware Of - If You Have Older Workers

Rewards (not including litigation damages) handed out by the courts for successful age discrimination (ADEA) lawsuits increased 45% over a four-year period (2001-05) according to Stephen Meyer. Along with statistics, Stephen has included an informative article on "ways to bring out the best in older workers." If you have older workers, it's worth a read.

Stephen's blog, HR Cafe, is an excelent site and worth reading. His articles cover numerous HR subjects and involve issues that many HR professionals face daily.

The downside to mis-handling older workers, especially when reducing staff, can be great. In observing employment litigation trends over the years in an economy that has experienced considerable downsizing, the ADEA is often the "stature of choice" for either unfair termination or improper selection in a reduction in force situation.

Since an aggrieved party can fairly easily assert a claim merely by showing that termination was on account "of age," the burdon of proof is then on the employer to prove otherwise. Often times, a new supervisor or a tighter economy result in the performances of long term employees, once acceptable, no longer being adequate.

Such cases present unique challenges and must be carefully handled.

It is important that there be ample documentation in the personnel file regarding that individual's performance (i.e. evaluations, reprimands, etc.), opportunities to improve and the need for improvement. Also, in a reduction in force, the revelent statistics of the population eligible for selection and the relevent statistics of those actually selected should be reviewed and analyzed before any decisions are made.

What Is The Age Discrimination in Employment Act?

In 1967, Congress passed the Age Disrimination in Employment Act (ADEA) to prohibit discrimination in employment because of age in shuch matters as hiring, job retention, compensation, and other terms, conditions and privileges of employment. The law is enforced by the Equal Employment Opportunity Commission (EEOC).

Specifically, the law prohibits employers with 20 or more employees, public employers, employment agencies serving such employers and labor organizations of 24 or more members from discriminating against persons over the age of 40 on the basis of their age. The statute makes it unlawful for an employer to:

1. fail or refuse to hire or discharge any individual or to descriminate against an individual with respect to compensation, terms, conditions or privileges of employment because of age.
2. Limit, segregate or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his or her status as an employee beause of age.
3. Reduce the wage rate of any employee in order to comply with the Act.

To establish a case of age discrimination, an employee or applicant must prove that they were (a) a member of the protected class, (b) suffered and adverse employment action and (c) the adverse employment action was motivated by age.

In 1996, the U.S. Supreme Court ruled that employees would not be required to show they were replaced by someone younger than age 40. The Court stated that the replacement by someone "substantially" younger than the plaintiff, whether or not that person is under or over 40, will suffice to establish the requirement that the adverse employment employment occurred under circumstances suggesting discrimination.

It is important to note that in most age discrimination cases, the burdon of proof generally falls on the defendant - i.e. the employer. This is something that every employer should keep in mind when hiring, downsizing or re-deploying existing employees.