Investigating Age Discrimination Complaints

1. Investigating Age Discrimination Complaints 16th Annual National Equal Opportunity Conference US Department of Labor Washington, DC August 25, 2005

2. 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

3. 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

4. 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

5. 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

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

7. 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

8. 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

9. 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

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

11. 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

12. 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

13. 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?

14. 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?

15. 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%)

16. 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