eeoc compliance manual chapter 3
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eeoc compliance manual chapter 3This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. The Equal Pay Act (EPA) (4) prohibits sex-based wage discrimination. These laws require that all employee benefits be provided in a non-discriminatory manner unless a statutory exception provides otherwise. The issues with regard to these types of benefits will typically be whether the differential was based on a protected classification or had the effect of discriminating, and whether the employer has a defense to that discrimination. Based on explicit statutory provisions in the ADEA and the ADA, these benefits raise issues that cannot be resolved through standard disparate treatment or impact analyses. This Section addresses in depth specific issues that are likely to arise when discrimination in these benefits is alleged. The amounts or types of coverage available may also be capped or limited. Some employers also provide a right of recall so that disabled employees can return to their jobs once they have recovered. Long-term benefits are typically paid for an extended period of time, although many plans differentiate between mental and physical impairments in determining the duration of the benefit program. Short-term benefits are those available for more temporary conditions where the employer anticipates that the employee will be able to work again in a relatively short period of time. There is no precise amount of time that differentiates long-term from short-term disability benefits, and their purpose is the same. Unlike other disability benefits, however, disability retirement benefits are typically payable until death, unless the employee is able to resume working. Therefore, they operate as a retirement benefit for former employees.http://020tzs.com/baige/images/userfiles/d3_js-manual.xml
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Severance benefits can be provided based on a unilateral decision by the employer or through the terms of a collective bargaining agreement. The amount of severance benefits paid also varies by employer. For example, some employers pay a set amount to all separated employees. Others may pay a week's salary for each year of service rendered by separating employees. These benefits are called service retirement or pension benefits. They can be distributed in a lump sum or as annuities that are paid periodically for life. Employers sometimes permit employees who leave the work force before reaching the required age or years of service to retire with reduced pension benefits. Under a defined benefit plan, the employer applies a specific formula to calculate each employee's retirement benefit and promises to pay that benefit once the employee becomes eligible. Formulas vary by employer and can be based on an employee's age, years of service, salary level, or some combination of these or other criteria. The amount of the retirement benefit then depends on the earnings of the employee's account. As is true of defined benefit plans, the amount of the employer's contributions, as well as the formula by which those contributions are calculated, will depend on the particular employer. Employers sometimes offer these incentives, which are intended to encourage employees to take early retirement voluntarily, as a means of addressing financial concerns that might otherwise lead to layoffs. The Section covers life insurance benefits, health insurance benefits, long-term or short-term disability benefits, disability retirement benefits, severance benefits, service retirement benefits, and early retirement incentives. Under the ADEA, a charge is not required in order for the EEOC to investigate an employer's fringe benefit practices. These provisions permit employers (5) to give lower benefits to older than to younger workers in some circumstances.https://ashcroftcreative.com/images/d3_js-reference-manual.xml This Section explains when lower benefits are permissible, and what an employer must prove to justify giving them. This Section addresses some of the questions that must be resolved in analyzing ADA benefit claims. An employer is also prohibited from excluding pregnancy, childbirth, or related medical conditions from its benefit plans or from singling out those conditions for different treatment. This Section discusses the coverage and application of these prohibitions. These former employees may challenge such discrimination, and investigators should accept such charges. See Compliance Manual Section 2 on Threshold Issues. Employers may, however, provide lower benefits to older than to younger workers in limited circumstances. This section discusses those circumstances. If the benefits are the same, there is no need to proceed further. For the types of benefits discussed in this Section, employers may provide a lesser level or duration of benefits to older workers: Thus, the fact that a benefit plan meets the standards of ERISA or the Internal Revenue Code is typically irrelevant in determining whether the plan is in compliance with the ADEA. (8) If so, has the employer spent equal amounts on, or incurred equal costs for, its younger and older workers. Has the employer used those amounts to provide a benefit commensurate with the cost? If so, and accounting for benefits available from other sources, is the older employee's total benefit no less favorable than the total benefit provided to a similarly situated younger employee? Unequal benefits may not be unlawful. But if benefits are not the same for older and younger workers, the employer will have to justify the difference. As long as the formula for calculating benefits is the same, the actual coverage provided toolder and younger employees may differ.https://congviendisan.vn/vi/boss-bv9250-manual The pension benefit to each is the same even though the 65 year old is likely ultimately to receive a greater total amount because he has a longer life expectancy. Because the cutoff of benefits is expressly age-based, these benefits are not equal. Because their duration, and even availability, differs based on the age at which an employee becomes disabled, these benefits are not equal. The plan states that employees will lose 5 of that payment each year, and will be ineligible for coverage altogether once they turn 65. These benefits are explicitly tied to, and reduced because of, the recipient's age. (9) Because eligibility for these Medicare benefits is tied to age, Employer B's plan treats retirees differently on the basis of age. Where age is one of the criteria for service retirement eligibility, this will be an age-based distinction. (10) A similarly situated younger worker is an employee who is the same as an older worker in all ways that are relevant to receipt of the benefit -- e.g., in length of service and salary, or in enrollment in the same insurance plan. A 55 year old employee with 10 years of service is not, for example, a proper comparator for a 65 year old worker with four years of service if the employer's plan bases benefits on length of service. In some cases, no such employee will exist. If there is no actual comparator, the investigator should calculate the benefit that the plan would pay to a hypothetical employee who is similarly situated in all relevant respects but who is younger than the charging party. The employer asserts that these benefits are based on a formula that takes account of salary level and years of service at the date that an employee leaves the work force. The plan contains no explicitly age-based criteria. CP identifies a younger coworker who receives more in disability retirement benefits. If so, the investigator should determine how much in disability retirement benefits each comparator receives.http://grahambettsmotors.com/images/case-220-baler-manual.pdf In appropriate cases, employers may be asked to assist in generating such computations. Employers should be asked to explain any discrepancies in the benefits received, so that the investigator may determine if age was a factor that made a difference in the employer's calculation of benefits. If they have not, there will be no ADEA violation. Even if older workers do receive less than similarly situated younger employees on the basis of age, however, this does not necessarily mean that the employer has violated the ADEA. It simply means that the investigator must determine whether the less favorable benefits are justified in ways permitted by the law. Eight of the laid-off workers are between 40 and 50 years old, and two are 55 years old. When challenged, Y states that it gave the older workers a higher benefit based on a government study stating that unskilled workers over the age of 50 have a much harder time regaining employment after a lay-off than their younger counterparts. Employer Y has acted to address problems older workers have in obtaining employment and has not violated the ADEA. The possible justifications are discussed in the sections below. It is the employer's obligation to prove that all aspects of the defense have been met. Congress recognized that the cost of providing certain benefits to older workers is greater than the cost of providing those same benefits to younger workers and that those greater costs would create a disincentive to hire older workers. It crafted the equal cost defense to eliminate the disincentive. Employers may use the defense only for benefits that become more costly to provide because of advancing age. The types of benefits that may meet this test are: For example, paid vacations and sick leave are not subject to the equal cost defense. The equal cost defense also does not apply to service retirement or severance benefits. However, the equal cost defense can never justify a refusal to hire or an involuntary retirement because of age. (14) An employer may not, however, reduce these types of benefits to older workers in order to avoid non-age-based increases in costs. If there is evidence that an employer is reducing benefits more for older than for younger workers as a means of offsetting cost increases unrelated to the age of those workers, the equal cost defense will not apply. Additionally, the plan must provide the benefits in accordance with the terms set forth. To determine whether a plan meets this standard, investigators typically need simply obtain a copy of the employer's plan documents and confirm that benefits have in fact been paid. The defense will not be met if the plan simply gives the employer discretion to pay lower benefits to older workers if it wishes. In such cases, the employer's rate is typically reflected both on the face of the plan and in the bills that it pays. If so, this prong of the equal cost defense can be readily satisfied. Employers may need to obtain documents from their insurers to provide these data. If the employer cannot do this, this prong of the equal cost defense will not be satisfied. Unless the employer can otherwise justify smaller benefits in such cases, investigators should find cause. The employer also must show that the reduction in benefits given to older workers is justified by age-based costs. In many cases, this showing will require the use of actuarial data. Where the likelihood of the event increases, actuarial data are also used to evaluate how much must be charged -- or how much the benefit must be adjusted -- to adequately cover the increased likelihood that the benefit will be claimed. While an employer may thus reduce these benefits, it must show that the reduction is no greater than is necessary to equalize its costs. Even though the employer has expended equal cost for each employee, no actuarial data could justify a 99 percent reduction in the benefits received by individuals starting on their 60th birthday. This plan thus violates the ADEA.For example, an employer need not prove that its actuarial data justify a specific reduction in benefits between 59 and 60 year old employees. An employer may instead compare actuarial data for persons ages 55 through 59 with data for those ages 60 through 64 in setting the level of benefits for people in these age groups. An employer may implement cost comparisons using brackets of less than 5 years but may not under any circumstances use brackets in excess of 5 years. (16) The same brackets should be used throughout the plan. For a further discussion of actuarial principles, see Appendix A, infra. If questions arise about calculation of actuarial values in particular charges, contact the Office of Legal Counsel. Only certain benefits may be packaged, and the overall result must be (1) no lesser cost to the employer, and (2) a package that is no less favorable in the aggregate than the benefits would have been to the employee under a benefit-by-benefit approach. The cost of both benefits is the same for the employer. Assume that age-based cost increases would justify a 10 reduction in both benefits on a benefit-by-benefit basis for persons 55 through 59. However, Employer F decides to reduce life insurance by 20 and maintain the full long-term disability benefit without reduction for employees in this age group. This is permissible if all other aspects of benefit packaging are satisfied. As above, assume that age-based cost increases would justify an aggregate maximum reduction, on a benefit-by-benefit basis, of 20 (10 for each benefit). Because Employer F has made an aggregate reduction of 23, the benefits in the package are less favorable for older workers than the benefits that would have been available under a benefit-by-benefit approach. This is not permissible. An employer may not, for example, package life insurance and paid vacation. Service retirement benefits also may not be part of a package. See Section IV (B), infra, for more information on restrictions on reductions of health benefits to retirees. Where the premium has increased for an older employee, the employer must offer the employee the option of withdrawing from the benefit plan altogether.When CP turns 60, K's insurer notifies K that it will increase the premium for CP's health insurance by 10. K tells CP that it can no longer afford to pay 40 of the cost for his health insurance, and that he will be required to pay the additional charge himself. K says that because all of its employees must have the same health insurance, it will be forced to terminate CP if he fails to pay the additional premium cost. Because CP is now being forced to pay more for his insurance as a condition of employment, this violates the ADEA. The premium cost rises as employees grow older; 60 year old employees thus must pay more for the disability benefits coverage offered by Z than 55 year old employees do. As long as the premium increases do not exceed the amount necessary to maintain the same level of coverage for older and younger workers, this is permissible. Enrollment in the plan is voluntary, and employees of all ages bear the same percentage -- here 100 -- of the cost of coverage for their age. In some cases, the ADEA permits offsets in order to avoid duplicative payments to older workers; in other cases, an offset is permitted in one type of benefit where an employer has offered older employees equal or more advantageous treatment in another benefit. Whatever the rationale for the offset, the general rule is that an offset will be lawful only if: Thus, this Section discusses the requirements for each offset separately, in the section of the document that addresses the relevant types of benefits. The offsets discussed in this Section are: (22) Beginning at age 50, the death benefit decreases by 10 every five years. Whenever benefits have been paid under the plan, they have been paid in accordance with the foregoing provisions. The employer shows that it has paid the same premium for each of its employees to obtain this level of coverage. The plan will be unlawful unless the employer can prove that the lower benefits are justified. If the amount of the reduction is in question, the employer must justify it. See Appendix A, infra, for a further explanation of actuarial calculations. Thus, the employer must show that the actuarial data support five year groupings ( e.g., 50 through 54, 55 through 59, etc.). The brackets may not cover more than 5 years. They must also be of equal duration regardless of the age of the employees included within the bracket. The employer could not, for example, create a 5 year bracket for employees between the ages of 50 and 54 and a 3 year bracket for those between the ages of 55 and 57. Where an employer adheres to this standard, there will be no violation of the ADEA, and investigators need make no further inquiry. (24) Erie County Retirees Ass'n v. County of Erie, 220 F.3d 193, 211 (3d Cir. 2000). Even though a portion of the benefit for older retirees will be provided by Medicare, the older retirees will receive an equal benefit, and the employer need not cost-justify its lower expenditures for coverage for these individuals. That plan covers 360 days per year of inpatient care in a hospital for retirees who are under 65 years of age. Assume that Medicare covers 180 days per year of inpatient care for individuals who are 65 or above. (27) Based on this, Employer M's policy provides only 180 days of hospital coverage per year for retirees who are 65 and over. Employer M has not violated the ADEA, because all retirees get coverage for 360 days of hospital care. Because Medicare recipients will be covered for a total of only 280 days of inpatient care (180 days from Medicare and 100 days from the employer), they have not received an equal benefit. The employer will be liable for a violation of the ADEA unless it can show that the additional reduction is justified under the equal cost defense. Erie County Retirees Ass'n v. County of Erie, 220 F.3d 193 (3d Cir. 2000). Absent explicit authorization for an offset, the ADEA generally requires that an employer offer an equal benefit to, or expend an equal cost for, older employees. Unless the employer can meet the equal cost defense, the law does not permit this age discrimination. (30) The plan provides that all employees who are eligible for the benefits will receive the same monthly amount, regardless of their age. With respect to disabilities that occur at age 60 or earlier, however, the plan provides that benefits will cease when the recipient reaches age 65. With respect to disabilities that occur after age 60, the plan states that benefits will cease 5 years after disablement. As a result, the benefits are not equal and will be unlawful under the ADEA unless they can be justified. The cost of disability benefits increases with age, and the benefit is part of a bona fide employee benefit plan that explicitly sets forth the benefit schedule. The ADEA permits either approach. If an employer adheres to this schedule, it has not violated the ADEA; the employer need not produce individualized cost data. Under EEOC regulations, there is no ADEA violation where: The schedule of benefits is as follows: Employer J must produce data that show that it has expended equal cost and has reduced the duration of its long-term disability benefits only to the extent necessary to preserve that cost. (32) Such benefits are triggered by the employee's disabling condition and are not age-based. These government-provided benefits include Social Security disability payments and workers' compensation. The employer may do so if: Both plans are entirely funded by the employer. Under the pension plan, employees are eligible to retire at the age of 65; employees receive long-term disability benefits whenever they become disabled. The duration of the payments adheres to the safe harbor in EEOC regulations. Under that schedule, CP is eligible to receive disability payments for 5 years (in this case, until he reaches the age of 67). Since the amount of the pension benefit for which CP is eligible exceeds the amount of the disability payment, R has terminated the disability payments altogether. The magistrate judge concluded that both the size of defendant's membership and defendant's membership eligibility requirements indicate that the requirement of meaningful conditions of limited membership is met by defendant. Plaintiff does not object to the magistrate judge's conclusion with respect to the size of membership, but only to the magistrate judge's conclusion with respect to defendant's membership eligibility requirements. The positions held by the 481 newest members of defendant certainly seem to indicate that screening of some sort is going on, and the other evidence strongly points to the prescreening of applicants by members proposing them for membership that the magistrate judge found. The magistrate judge therefore correctly concluded that the undisputed facts establish defendant's eligibility for the bona fide private membership club exemption from the requirements of Title VII. The objections of plaintiff, the Equal Employment Opportunity Commission, to the magistrate judge's January 30, 1995, report and recommendation are overruled. The magistrate judge's January 30, 1995, report and recommendation is accepted. Defendant's motion for summary judgment is granted. Judgment in favor of defendant, The Chicago Club, and against plaintiff, the Equal Employment Opportunity Commission, on plaintiff's complaint for declaratory and injunctive relief will be set forth on a separate document and entered in the civil docket. FRCP 58, 79(a). If an employee For example, an employee may object The employer's duty to The employer may have to excuse the employee Exempting an employee from a training program The employees In addition, R's policy of requiring employees See Commission Decision Nos. 81-83. Failure to properly “exhaust” one’s administrative remedies or to comply with administrative filing deadlines can be fatal defects to a subsequent legal claim. This article addresses the deadlines for filing administrative claims, the maze of laws that lead to those deadlines, and the deadlines for filing suit in the courts. The major statutory schemes on which the bulk of all California employment discrimination litigation is based and which are the focus of this article are. The Administrative Filing Requirement Theoretically, the filing of an administrative claim will trigger the investigatory and conciliatory procedures of the appropriate administrative body, with the hope that unlawful employment practices can be resolved and eliminated informally. If successful, the need for judicial involvement may never arise, thereby easing the burden on the court system, maximizing the use of presumed administrative agency expertise, and providing a more economical and less formal means of resolving the dispute. Rojo v Kliger (1990) 52 C3d 65, 83, 276 CR 130. If an administrative charge is filed between 300 days and one year of the illegal act, the charge is timely only as to the FEHA claims; subsequent Title VII or ADA legal claims may be barred. Some courts have held that when equity mandates, a plaintiff’s delinquent administrative filing may be excused. See below. Both defenses should be raised because, although technically the failure to file a timely administrative claim is a failure to properly exhaust administrative remedies, case law tends to treat this as a statute of limitations issue. See Zipes v Trans World Airlines, Inc. (1982) 455 US 385, 393, 71 L Ed 2d 234, 243, 102 S Ct 1127. This discussion is for those interested in the law supporting these simple conclusions. This means that when state and federal laws overlap, the state agency must process the charge first. Effectively, there is a 60-day “hold” on the filing of federal charges, and the federal filing period is reduced to 240 days. See Mohasco Corp. v Silver (1980) 447 US 807, 816, 825, 65 L Ed 2d 532, 542, 547, 100 S Ct 2486. For example, if the initial charge filed by an aggrieved person was with the EEOC and was filed 241 days after the discriminatory act, the EEOC would be precluded from processing the matter for 60 days. By the time the EEOC was authorized to consider the matter, 301 days would have expired following the act of discrimination, and the charge would be deemed untimely. See EEOC v Commercial Office Prods. Co. (1988) 486 US 107, 111, 100 L Ed 2d 96, 103, 108 S Ct 1666. Under this agreement, the EEOC and DFEH are each the agent of the other for purposes of receiving charges, and a claimant may “cross-file” charges, whereby a filing with one agency is forwarded to and considered filed with the other. In fact, the Worksharing Agreement requires each agency (the EEOC or DFEH) to inform individuals of their right to file charges with the other agency, and to assist individuals with the “dual-filing” of charges with both agencies. Moreover, in states where the time for filing a state claim is less than 300 days, a claimant is afforded the extended federal filing period even when his or her filing renders the state claim untimely. EEOC v Commercial Office Prods. Co. (1988) 486 US 107, 123, 100 L Ed 2d 96, 111, 108 S Ct 1666. EEOC v Commercial Office Prods. Co. (1988) 486 US 107, 114, 120, 100 L Ed 2d 96, 109, 108 S Ct 1666. The net result is that generally an aggrieved individual can preserve his or her legal rights under Title VII, the ADA, and the FEHA by dual-filing a charge with either the EEOC or DFEH within 300 days of the alleged unlawful practice. This article does not attempt to fully discuss this issue, but briefly addresses one of the major areas of controversy. Under federal law, this issue has been resolved; the time will run on notice. Thus, in Delaware State College v Ricks (1980) 449 US 250, 257, 66 L Ed 2d 431, 439, 101 S Ct 498, the court held that the claim accrued not when the plaintiff was fired, but when he learned that he had been denied tenure, because on the facts presented, eventual termination was an inevitable consequence of the tenure denial. Under California law, appellate courts have rendered conflicting holdings. In Regents of the Univ. of Cal. v Superior Court (1995) 33 CA4th 1710, 1717, 39 CR2d 919 (Fourth District, Division One), the court held that the claim accrues when the plaintiff learns of the decision to terminate, even if he or she continues to work. This, of course, coincides with the federal approach. However, in Romano v Rockwell Int’l, Inc. (1995) 39 CA4th 140, 148, 46 CR2d 77 (Second District, Division Two), the court held that the time does not run until the actual termination occurs. The California Supreme Court has recently granted review of the Romano case (review granted Jan. 18, 1996, S050290), so further guidance should be forthcoming. Matters can become quite complicated, particularly when the claimant has reason to know or suspect the discriminatory act before it occurs (see, e.g., Reeb v Economic Opportunity Atlanta, Inc. (5th Cir 1975) 516 F2d 924, 931), or when continuing discriminatory acts are alleged.Under Subchapter I, a plaintiff clearly must exhaust administrative remedies. If a plaintiff proceeds under Subchapter II, however, an argument exists that the plaintiff need not exhaust. Subchapter I incorporates many of Title VII’s “powers, remedies, and procedures,” including the administrative filing provision.See Petersen v University of Wisconsin Bd.Thus, a solid argument can be raised that an individual may file an action against a public entity for employment discrimination under Subchapter II of the ADA directly in a court of law, without first exhausting administrative remedies.