1) Page 538 - What is the purpose of the Age Discrimination in

Employment Act (ADEA)?

To promote the employment of older people (40 and over) based on their
ability rather than age and prohibiting arbitrary discrimination in
employment.
2) Page 539 What are the three distinctions between Title VII and
the ADEA
First, ADEA is more lenient than Title VII regarding an employers reasons
for adverse employment decisions, ADEA allows rebuttal of prima facie
age discrimination cases by identifying any reasonable factor other than
age; Second, employees are not barred from pursuit of cases simply
because the employer treated another older worker better; Third, ADEA
only protects those 40 and over from discrimination. There is no reverse
discrimination.
3) Page 538 Exhibit 12.2-3 At what age may an employee claim age
discrimination?
40, as stated previously.
From the TEXBOOK
4) Page 553 What is the employer defense of Reasonable Factors
Other than Age (RFOA) and provide an example. Is this different
than Title VII? Why?
When it is reasonably designed and administered to achieve a legitimate
business purpose in light of the circumstances, including its potential
harm to older workers.
The RFOA does not need to be supported by studies like a Title VII
business necessity claim might need to be, it only need to be
reasonable.
Is the RFOA related to the employers stated business purpose?
Is the RFOA applied fairly and accurately?
Is the RFOA shown to limit supervisors discretion to access
employees subjectively (particularly when known to be subject to
negative age-based stereotypes)?
Is the RFOA assessed to show the adverse impact on older
workers?
What is the RFOA degree of harm against the protected age
group?
5) Page 552 - Are economic factors a justifiable defense to a suit
based on age discrimination? Why?
Yes, generally the employer is absolved of liability when they follow a
specified procedure for cost saving measures such as terminations (or
layoffs) and objective criteria was used to determine the employees
discharged and where the entire position was eliminated.
6) Read Hazen Paper Co. V Biggins (Case Study 3) on pages 581-2 and
answer the following:
6-a) Summarize the case.
 Hazens fired Biggins in 1986 after 9 years at the age of 62. Biggins claimed it
violated ADEA. Hazen claims it was because he did business with competitors.
Relying on evidence Hazens really fired him to prevent his pension from vesting
so the jury sides with Biggins.
6-b) Are you in agreement with this decision? Why?
Yes. Well because if it was not his age they could have just shown evidence
they were attempting to prevent his pension from vesting, and show fair and
accurate implementation of that being prevented for even a single employee
under 40.
6-c) Please answer the following these are the case questions on page
582
6-1. Do you agree with the court that age and years of service are
sufficiently distinct to allow for terminations based on years of service and
to find no violation of the ADEA where the terminations result in a greater
proportion of older workers being fired? Why?
Yes, because it is possible for someone to join the company at 18 and vest at
28, or be 29 and vest at 39. But, it is rare for employees to have a single job.
Especially younger people so it is more likely they would have either have
significantly more than 10 years service, or have settled at a company later
in their employment life.
6-2. Arent workers close to vesting more likely to be older workers? And,
if so, then do you believe that an employer can use the category close to
vesting to avoid liability under the ADEA?
Yes, they are. See 6-b & 6-1.
6-3. If an employer did terminate a group of individuals on the basis of
their being close to vesting with the intention of getting rid of older
workers, what type of evidence would the employees/plaintiffs be able to
use to prove the unlawful intent?
Lack of fair and accurate implementation of younger vesting employees
termination.
7) Read Oubre v. Entergy Operations, Inc. on ppg. 582-3 and answer
the following:
7-a) Summarize the case.
Oubre was given a poor performance rating and asked to improve over the
coming year or accept voluntary termination with severance and would sign a
ADEA waiver. She took the severance but later claimed age discrimination. The
courts disagreed claiming she made no effort to return the severance. But, the
Supreme Court overturned because the waiver did not meet the binding waiver
requirements.
7-b) Do you agree with the decision of the Supreme Court? Why?
Its difficult to know. I feel the reason for the original poor performance review
should have been a factor. As long time employees are often pushed out by
changing long standing standards and policies that elicit poor performance from
older employees set in their ways. This might have been a factor. However,
without knowing these factors I would side with the Supreme Court.
7-c) Why do you think Oubre did not make restitution?
It is highly likely the severance was used by the time any action on the claim
came about it was already spent and lacked the means to return them. She was
now unemployed after all.
7-d) What do you think Oubre is trying to achieve in her efforts to set
aside her agreement to the severance package? Do you think this is right?
Why?
Essentially a larger settlement than her severance. See 7-b.
7-1. Do you think that the reasons for offered by the employer were
pretextual (a pretext)? Why or why not?
See 7-b.
7-2. Do you think that the burden shifting from employee to employer
and then back again to the employee is a good system? Why or why not?
Im not sure I understand what you are asking here.
7-3. What can an employer do to insulate itself from terminating
individuals for reasons that can be perceived to be pretextual?
Show a history of fair and accurate implementation of all company policies
(including terminations) would go a long way toward protecting the company.
8) Go to www.eeoc.gov and click on the age link in the Employees
and Applicants section on the home page, and then click on Facts about
Age Discrimination on the right hand side and answer the following:
8-a) Can an apprenticeship program specify an age limit? Why?
Typically no. Although there are certain exceptions under ADEA or EEOC can
grant an exception.
8-b) What are the conditions that an employee can sign an ADEA waiver?
Typically, employee termination incentive plans such as Oubre v. Entergy
Operations, Inc or to settle an ADEA discrimination claim. There are certain criteria
that must be met to make them binding as listed on the EEOC.gov website.