Age Discrimination the Type of Term Paper

  • Length: 16 pages
  • Sources: 10
  • Subject: Careers
  • Type: Term Paper
  • Paper: #96033610

Excerpt from Term Paper :

It was after a lot of concern expressed in this matter and after a long legal and judicial consideration that the legislature passed the act.

Legal Enforcement

The U.S. Equal Employment Opportunity Commission is the authority that enforces the legislation on age discrimination namely the 'Age Discrimination in Employment Act of 1967 - ADEA'. This act is designed to protect individuals who are about forty or above years of age the ADEA's stipulations apply to those in employment and those applying for one. Prior to the law, a number of rulings by courts created the backdrop for passing of the statute. It is therefore important t consider in depth the working of this commission.

The U.S. Equal Employment Opportunity Commission -- EEOC

The U.S. Equal Employment Opportunity Commission -- EEOC was instituted as an 'independent federal agency' in 1964 with the main responsibility of enforcing the Civil Rights Act of 1964. The power of the commission is in enforcing the provisions of the law, of which it is the executor. The commission enforces all laws that pertain to job discrimination and workplace and employment rights. The laws that are enforced by the commission include the "Age Discrimination in Employment Act of 1967 - ADEA', 'Equal Pay Act of 1963 -EPA', 'Disabilities Act of 1990 - ADA', 'Rehabilitation Act of 1973', and the 'Title VII of the Civil Rights Act of 1964'."

The EEOC enforces all these laws and in addition coordinates the federal equal employment regulations in force. The laws enforced by the commission have a wide range of impact on the workforce, workplace procedures and employment. Following the guidelines of the commission is mandatory. The laws protect workers from discrimination and workplace harassments. The power of the commission is vast and includes "private employers, state and local governments, and education institutions that employ 15 or more individuals."

Essentials of the Law

The intention of the legislature was clear when the declaration of the Congress showed that in view of rising affluence old workers find themselves jobless or retain employment, secondly the arbitrary age limits that are set for employment regardless of potential for performance always operate to the determents of older individuals. Further the Congress states: "the incidence of unemployment, especially long-term unemployment with resultant deterioration of skill, morale, and employer acceptability is, relative to the younger ages, high among older workers; their numbers are great and growing; and their employment problems grave;" and the law is being passed to prohibit discrimination based on age in places of employment.

The basic needs that are outlined in bringing an action for discrimination under the act relates to people above the age of forty. That is the first requisite. The person must have been qualified for the post in which he or she is employed, or has filed an application to be selected. Thus age cannot be a criterion for the candidate except with a few exceptions where age can be a factor. Like a job that involves lifting heavy loads for example. "The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a 'bona fide occupational qualification (BFOQ)' reasonably necessary to the essence of the business." This also goes for apprenticeships and other form of work: "It is generally unlawful for apprenticeship programs, including joint labor-management apprenticeship programs, to discriminate on the basis of an individual's age. Age limitations in apprenticeship programs are valid only if they fall within certain specific exceptions under the ADEA or if the EEOC grants a specific exemption." person can waive off some of the privileges afforded by this law, and the contract of employment can stipulate such waivers. However "the ADEA, as amended by OWBPA, sets out specific minimum standards that must be met in order for a waiver to be considered knowing and voluntary and, therefore, valid. Among other requirements, a valid ADEA waiver: (1) must be in writing and be understandable; (2) must specifically refer to ADEA rights or claims; (3) may not waive rights or claims that may arise in the future; (4) must be in exchange for valuable consideration; (5) must advise the individual in writing to consult an attorney before signing the waiver; and (6) must provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it. In addition, if an employer requests an ADEA waiver in connection with an exit incentive program or other employment termination program, the minimum requirements for a valid waiver are more extensive."

What happens if an employee opposed some activities in the organization? Or take recourse to legal remedies for grievances? If it is established that the employee is being discharged for any of these reasons and on account of his or her age, then the provisions of the act will apply. It is clearly stated that "It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government."

The law is simple and clear, and the age factor is the most important in its application. The court also rules that while it is law that the plaintiff should prove that the discharge was on account of age, in showalter v university of Pittsburgh medical centre the third circuit held that as a prima-facie age case, "the plaintiff was not required to prove the fact that the employer retained workers below the age 40, but it was sufficient to show that the employer kept employees younger than the plaintiff. Thus a reliable indicating factor relating to age discrimination could be that the rest of the employees are much younger than the complainant."

The authority for investigating and providing relief for this type of harassment is the EEOC as stated before, and the commission has a set of procedures to be followed in case of a dispute. "Under a disparate impact claim, plaintiffs generally allege that a facially-neutral practice or program (e.g., a decision to eliminate higher-salaried positions) has a discriminatory effect, or 'impact,' on a protected class of employees." Therefore by implication there is a need to prove statistically that there has been an adverse influence on the class which is protected. After the decision in "by necessity, therefore, proving such an effect involves the use of statistical analyses. The parties in such a case must retain statisticians in order to determine whether there has been a disproportionate impact on the relevant protected class. Now that the Smith case has been decided, employers should think carefully about doing such a statistical analysis for employees age 40 and over when effectuating workforce changes such as layoffs."

Procedures:

Except for complaints under the Equal Pay Act, all proceedings under the EEOC require the filing of a charge with the commission before the filing of a lawsuit. The law of limitation applies for suits and complaints filed before the commission. The agency has the power to dismiss a charge at any time if it is felt to be vexatious and there will not be proved any violation of law. The discrimination charges and consequences are being taken seriously by the employers. This is a sign of the impact. Further we have to note that the Commission has implemented recommendations by opening the National Contact Center --NCC which provides the public with latest technology and facilities to access the services of the Commission. The institution was commended on its performance by the U.S. Commission on Civil Rights -- USCCR. The programs are thus effective and in line with the implementation of the commission objectives. While the effect of the commissions activities help the workforce and have a wide range impact, and the guidelines of the commission is mandatory to be followed, there are two major hurdles that stand in the way of the progress and effective authority of the commission. The laws enforced by the commission have a wide range of impact on the workforce, and there fore its functions will have to be realigned with the changes brought about at the workplace itself due to the variations in the pattern of work and technology.

The history of the Law and rulings

There were rulings which caused the act to become wider in scope and be effective. The 'U.S. Supreme Court' ruling with regard to 'Smith v. City of Jackson' on March 30, 2005 is an example. This decision changed the arena of discrimination litigation. In this landmark judgment the 'U.S. Supreme Court'…

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