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EMPLOYMENT DISCRIMINATION BASED ON AGE

Summary

Section 201 of the Congressional Accountability Act (CAA) applies certain rights and protections of the Age Discrimination in Employment Act of 1967 (ADEA) to covered employees. Under this section, all personnel actions -- e.g., hiring, discharge, promotion, pay, benefits -- affecting covered employees who are 40 or more years of age must be free from
discrimination based on age.

The ADEA section referenced by the CAA states a general prohibition against age discrimination in employment. The Board has not adopted regulations on age discrimination. However, employing offices and covered employees may find it helpful to refer to court decisions interpreting the ADEA and Title VII, as well as the interpretations, opinions, and other materials issued by the Equal Employment Opportunity Commission (EEOC), which is responsible for implementing the ADEA.

This summary describes the rights and protections applied by the CAA regarding age discrimination, followed by "questions and answers."

1. Coverage

The CAA provides that all personnel actions affecting covered employees shall be free from age discrimination. This includes hiring, discharge, promotion, pay, benefits, reassignment, and other personnel actions affecting the terms, conditions, and privileges of employment.

The covered employees and employing offices subject generally to the CAA are described in the Introductory section.

2. Age Discrimination Prohibited

The CAA protects individuals who are at least 40 years old against age discrimination. Individuals younger than 40 are not protected, even if they are subjected to age discrimination.

The law generally forbids the use of age as a motivating factor in personnel actions. Employing offices may not discriminate in hiring, nor, except as otherwise permitted, involuntarily retire someone because of age who is at least 40 years old.

Proving motivation depends on the facts of a particular case. For example, placing a phrase like "age 25-50" or "young" or "college student" in a help-wanted notice or advertisement may be evidence of discriminatory motive. Furthermore, a covered employee may seek to prove that he or she was treated differently from others in similar circumstances, and to prove that age was a motivating factor. Under certain circumstances, an employing office may need to demonstrate that it took adverse personnel action against a covered employee for non-discriminatory reasons, and accurate records of employees' job performance may be critical in such a case.

A covered employee over 40 may also assert that he or she is harassed on the basis of age. Insults, jokes, slurs, or other conduct relating to age may be unlawful if severe, egregious, and pervasive enough to create a hostile environment or interfere with an individual's work performance.

3. Exceptions

Age discrimination law generally recognizes several exceptions. For example, a bona fide seniority or merit system may be permissible if it is not intended to discriminate on the basis of age. The employing office must prove that the conditions for a particular exception have been met.

4. Waiver

The CAA makes applicable certain provisions of the ADEA regarding waiver of rights and protections. These provisions apply to any waiver that an employing office requests from a covered employee in connection with an exit incentive or other employment termination program, as well as any other waiver of a covered employee's age-discrimination right or claim.

Any such waiver of a right or claim must be "knowing and voluntary" and must be in exchange for consideration in addition to anything of value to which the individual is already entitled. This includes, among other things: that the agreement be in writing in understandable language, that it refer specifically to ADEA rights or claims; the individual does not waive rights or claims that arise after the date the waiver is executed; the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; the individual is advised in writing to consult with an attorney prior to signing the agreement; and that it give the individual at least 21 days (45 days for a group exit incentive program) to consider the agreement and at least 7 days following execution to revoke the agreement.

5. Intimidation or Reprisal

Intimidation, reprisal, or discrimination against a covered employee for opposing practices or for initiating or participating in a proceeding is prohibited, as described in the Introductory section.

6. Remedies

In case of a violation of the age discrimination provisions of the CAA, several kinds of remedies may be available:

  • The remedy may be such legal or equitable relief as will effectuate the purposes of the ADEA, as made applicable by the CAA. (For example, in an appropriate case, the Board or the courts might find that the CAA authorizes an order to hire, reinstate, or promote, or to give back pay or front pay).
  • Liquidated damages are provided in an amount equal to the amounts owing to a person as a result of the violation, but only in a case of a willful violation. (The Board or courts might find a willful violation if an employing office knew or showed reckless disregard for whether its conduct was prohibited.)
A description of the generally applicable remedies (attorneys fees, interest) and limitations (no civil penalties or punitive damages) is found in the Introductory section.


DISCRIMINATION BASED ON AGE

Questions and Answers

1. Q. At what age is an employee protected from discrimination by an employing office based on age?

A. The Age Discrimination in Employment Act, as made applicable by Section 201 of the CAA, prohibits discrimination against any individual aged 40 or older.

2. Q. What actions by an employing office are unlawful when taken against an employee aged 40 or older?

A. An employing office is prohibited from discriminating against an employee aged 40 or older by:

  • failing or refusing to hire or discharging any individual or otherwise discriminating against any individual with respect to his or her compensation, terms, conditions, or privileges or employment, because of the employee's age;
  • limiting, segregating, or classifying an employee in any way that would deprive or tend to deprive any individual of an employment opportunity because of the employee's age.

3. Q. How does an employee establish a claim of age discrimination?

A. By demonstrating that an adverse action taken by an employing office was actually motivated by age animus. For example, an employee may have direct evidence of discrimination, or discrimination may be inferred when: (a) the employee is within the protected age group (aged 40 or older); (b) the employee was doing satisfactory work; (c) the employee was discharged despite the adequacy of his or her work; and (d) the position was filled by a younger employee.

4. Q. How can an employing office show it did not discriminate against the employee based on age?

A. Once an employee makes an initial showing of discrimination, the employing office can rebut the inference of discrimination by showing that there was a legitimate non- discriminatory reason for the employee's treatment. The employing office may take unfavorable action against an employee in the protected group (aged 40 or older), where the action is based on an employee's inability to continue to perform the job, or because of the employee's unsatisfactory job performance.

5. Q. May an employing office replace an employee aged 40 or older (for example aged 50) with an employee who is also in the protected age group (for example aged 43)?

A. It does not matter that the newly hired employee is also within the protected age group if the employing office in fact terminated the first employee based on that employee's age.

6. Q. What remedies does an employee aged 40 or older have if an employing office discriminated against that employee based on the employee's age?

A. An employee may have a right to be hired, reinstated or promoted. In addition, an employee may be entitled to unpaid wages or overtime compensation and liquidated damages.

 

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