Investigating Age Discrimination Complaints

16th 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
– Set standards for other federal agencies

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
• 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
• 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
• 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
• 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)
• 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)
• Children’s Hospital of Philadelphia
– Established to provide pediatric medical care – Medical specialties – Equipment

• Nursing Home
– Skilled Care (age specific?) – Administrative ease

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
• 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
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
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
• 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
• 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
• 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.h
– Department of Education OCR Website