Investigating Age Discrimination Complaints

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Investigating Age Discrimination Complaints

• 16th Annual National Equal Opportunity Conference
• US Department of Labor
• Washington, DC
• August 25, 2005

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Age Discrimination Act of 1975

• Built on the foundation of Title VI
• HEW issued general government wide regulations in
  1979
• Set standards for other federal agencies

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What It Does

• Prohibits discrimination on the basis of age
• Protects persons of all ages
• General provisions are like Title VI
• Tied to the presence of federal funding

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Employment

• General covered by Age Discrimination in
  Employment Act of 1967
• Enforced by EEOC (40-70)
• Comparable to Title VII of Civil Rights Act
• 1975 Act does apply to programs where purpose of
  federal funding is employment

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Exceptions

• age distinctions in other laws
• federal, state, local (See Appendix A)
• That
• Provides age based benefits,
• Establishes participation criteria based on age
• or targets groups in age related terms
• Employment practices of employer, agency, labor
  organization, joint LM apprentice program

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More Exemptions

• permits certain kinds of different treatment
• in order to achieve a statutory objective
• maintain normal operation
• How Do You Determine???

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The (dreaded) Four Part Test

• Age is used as a measure of one or more
  characteristics
• Characteristic must be measured for program to
  continue
• Characteristic can be reasonably measured by the
  use of age
• Impractical to measure directly on individual
  basis

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Examples (statutory objective)

• Public Health Service Act
• Goal Reduce communicable disease through
  vaccinations
• Where are infectious/communicable diseases most
  prevalent?
• Have to determine target groups to immunize
• Medical Data shows ages 1-15 most vulnerable
• Assessing individuals not practical vs. targeted
  immunization efforts

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Example (normal operation)

• Childrens Hospital of Philadelphia
• Established to provide pediatric medical care
• Medical specialties
• Equipment
• Nursing Home
• Skilled Care (age specific?)
• Administrative ease

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Exceptions (continued)

• Age distinctions in DOL regulations are presumed
  to be necessary
• policies/practices based on reasonable factors
  other than age
• special benefit programs

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Investigating Age Discrimination Cases

• Step 1
• Refer complete complaints to Federal Mediation
  Service for 60 day mediation efforts
• Step 2
• Not much different than a Title VI case
• Disparate Treatment
• Disparate Impact

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Disparate Treatment Cases

• Establish a prima facie case
• Person in a protected class?
• Qualified for the service
• Did not receive service
• Others similarly situated receive services or
  benefits

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Next Steps

• Afford covered entity opportunity to articulate a
  legitimate non discriminatory reason for its
  action(s)
• Age restriction under federal,state,local law?
• DOL reg?
• Meets four part test?
• Pretextual?

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Disparate Impact

• Prima Facie Case
• Statistical and comparative evidence
• What policy or procedure is causing the
  disparity?
• Articulate a Program Necessity Reason
• Based on reasonable factors other than age?

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Some Statistics

• HHS Case Data
• Current 21 age cases of 1922 open civil rights
  cases (lt 1)
• HHS has closed/resolved 4476 civil rights cases
  since October 1, 2003
• 66 age cases (1.5)

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Some Resources

• http//www.hhs.gov/ocr/age.html
• Department of Health and Human Services OCR
  Website
• http//www.ed.gov/about/offices/list/ocr/qa-age.ht
  ml
• Department of Education OCR Website