Investigating age discrimination complaints
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Investigating Age Discrimination Complaints. 16 th Annual National Equal Opportunity Conference US Department of Labor Washington, DC August 25, 2005. Age Discrimination Act of 1975. Built on the foundation of Title VI HEW issued general government wide regulations in 1979

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Investigating Age Discrimination Complaints

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Investigating age discrimination complaints

Investigating Age Discrimination Complaints

16th Annual National Equal Opportunity Conference

US Department of Labor

Washington, DC

August 25, 2005


Age discrimination act of 1975

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


What it does

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


Employment

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


Exceptions

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


More exemptions

More Exemptions

  • permits certain kinds of different treatment

    • in order to achieve a statutory objective

    • maintain normal operation

  • How Do You Determine???


The dreaded four part test

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


Examples statutory objective

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


Example normal operation

Example (normal operation)

  • Children’s Hospital of Philadelphia

    • Established to provide pediatric medical care

    • Medical specialties

    • Equipment

  • Nursing Home

    • Skilled Care (age specific?)

    • Administrative ease


Exceptions continued

Exceptions (continued)

  • Age distinctions in DOL regulations are presumed to be necessary

  • policies/practices based on reasonable factors other than age

  • special benefit programs


Investigating age discrimination cases

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


Disparate treatment cases

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


Next steps

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?


Disparate impact

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?


Some statistics

Some Statistics

  • HHS Case Data

  • Current: 21 age cases of 1922 open civil rights cases (< 1%)

  • HHS has closed/resolved 4476 civil rights cases since October 1, 2003

    • 66 age cases (1.5%)


Some resources

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.html

    • Department of Education OCR Website


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