WHAT EVERY OKLAHOMA ELDER LAWYER SHOULD KNOW ABOUT
AGE DISCRIMINATION CLAIMS
By Steve Ruby
December 1, 2003
I. Introduction
Age discrimination in employment is a relatively new field of law and one that will most certainly change, as the population of baby-boomers gets older. Federal law,[1] as well as state law,[2] governs age discrimination, and knowledge of the specifics of each as well as how they co-exist is absolutely necessary. It is important that an attorney, when taking a case involving age discrimination in employment, understand the different procedures and remedies fully to make sure that she is taking the right action for her client.
II. Federal Law
Numerous federal laws prohibit employment discrimination in the United States.[3] Title VII of the Civil Rights Act of 1964 “prohibits employment discrimination based on race, color religion, sex, or national origin.”[4] The Equal Pay Act of 1963 (EPA) “protects men and women who perform substantially equal work in the same establishment from sex-based wage discrimination.”[5] Title I and Title V of the Americans with Disabilities Act of 1990 (ADA) “prohibits employment discrimination against qualified individuals with disabilities in the private sector and in state and local governments.”[6] The Rehabilitation Act of 1973 “prohibits discrimination against qualified individuals with disabilities who work in the federal government.”[7] The Age Discrimination in Employment Act of 1967 (ADEA), which is the focus of this particular analysis, “protects individuals who are 40 years of age or older.”[8]
United States Equal Employment Opportunity Commission (EEOC)
The United States Equal Employment Opportunity Commission (EEOC) enforces the federal statutes listed above.[9] Along with enforcement, the EEOC “provides oversight and coordination of all federal equal employment opportunity regulations, practices and policies.”[10] As a lawyer seeking information on the basics of federal laws that prohibit job discrimination, the EEOC’s website is a great resource and is the source of much of the information listed above.[11] The link to “Federal Job Discrimination Questions and Answers” contains helpful information pertaining to topics such as the federal laws prohibiting job discrimination, discriminatory practices that are prohibited by these laws, employers and other entities covered by these laws, and charge processing procedure.[12]
The EEOC’s website also includes information concerning the possible remedies that may be available when discrimination is found.[13] Available remedies include back pay, hiring, promotion, reinstatement, front pay, reasonable accommodation, or other actions that make the individual “whole,” as well as attorneys’ fees, expert witness fees, and court costs.[14] Compensatory and punitive damages are available where intentional discrimination is found under the EEOC enforced laws.[15] Also on its website the EEOC has published facts about processing regulations,[16] along with appellate procedures employed by the EEOC.[17]
Age Discrimination in Employment Act (ADEA)
It is the purpose of the Age Discrimination in Employment Act (ADEA) of 1967 “to promote employment of older persons based on their ability rather than age, to prohibit arbitrary age discrimination in employment, and to have employers and workers meet the problems arising from the impact of age in employment.”[18] The ADEA recognizes that productivity and affluence of older workers is rising, and it protects individuals who are at least 40 years old.[19]
The establishment of a prima facie case under the ADEA requires that the person bringing the claim was “in the protected age group of persons 40 years of age and older, performing her job satisfactorily, suffered adverse employment action, and was replaced by a similarly situated individual outside the protected class.”[20] If the defendant fails to present a defense in response to the prima facie case, he will most likely be found to have violated the ADEA.[21] The burden of persuasion does not shift to the employer to disprove a discriminatory motive.[22] Instead the Supreme Court has held that the burden of persuasion, in an ADEA claim, “remains with the plaintiff throughout the case and that the defendant’s burden is merely one of articulating a legitimate, nondiscriminatory reason for the discharge."[23] Once the employer articulates such a purpose the burden then shifts back to the employee to prove that the employer’s stated reasons are merely pretextual and that age discrimination was the true reason for the adverse employment action.[24]
Since both federal and state laws govern the issue of age discrimination in employment, it is important to understand the procedure involved in complying with both. In order to file charges with the EEOC under the ADEA, charges must be filed with the EEOC no later than 300 days of the discriminatory act or 30 days after notice has been given that the state or local agency has ended their processing of the charge.[25]
III. Oklahoma Law
Oklahoma’s Anti-Discrimination Act “embodies” federal discrimination statutes as much as possible.[26] Employment Discrimination is defined as follows:
A. It is a discriminatory practice for an employer:
1. To fail or refuse to hire, to discharge, or otherwise to discriminate against an individual with respect to compensation or the terms, conditions, privileges or responsibilities of employment, because of race, color, religion, sex, national origin, age, or handicap unless such action is related to a bona fide occupational qualification reasonably necessary to the normal operation of the employer's business or enterprise; or
2. To limit, segregate, or classify an employee in a way which would deprive or tend to deprive an individual of employment opportunities or otherwise adversely affect the status of an employee, because of race, color, religion, sex, national origin, age, or handicap unless such action is related to a bona fide occupational qualification reasonably necessary to the normal operation of the employer's business or enterprise.
B. This section does not apply to the employment of an individual by his parents, spouse, or child or to employment in the domestic service of the employer.[27]
Human Rights Commission
The Oklahoma Anti-Discrimination Act employs the Human Rights Commission (the Commission) in order to govern proceedings that fall under the act.[28] The Commission has the power to, among other things, “receive, investigate, seek to conciliate, hold hearings on, and pass upon complaints alleging violations of this act.”[29] To start an action against an employer the aggrieved party must file a sworn complaint with the Commission within 180 days of the discriminatory action, and the complaint must include facts “sufficient enough to enable the Commission to identify the person charged.”[30] The Human Rights Commission then has the discretion to dismiss the claim within sixty days after the complaint is filed.[31] Upon dismissal the complainant may file an application for reconsideration within thirty days of receiving a copy of the order dismissing the complaint.[32]
In its hearing process,[33] the Commission may grant relief several ways. The Commission may choose to eliminate the discrimination through the use of conference, conciliation, and persuasion. In employing these tactics the Commission may require the respondent to refrain from committing discriminatory practices of a certain type in the future and/or require the respondent to take affirmative action as the Commission sees fit.[34] Affirmative action required by the Commission may include the following:
1. hiring or reinstatement of employees with or without back pay (less amount earned or earnable with reasonable diligence by such employees);
2. admission or restoration of individuals to union membership, admission to or participation in a guidance program, apprenticeship training or retraining program, on-the-job training program, or other occupational training or retraining program, with the utilization of objective criteria in the admission of individuals to such program;
3. admission of individuals to a public accommodation;
4. reporting as to the manner of compliance;
5. posting notices in conspicuous places in respondent's place of business in the form prescribed by the Commission and inclusion of such notices in advertising material;
6. awarding costs, including attorneys fees, to:
a. a prevailing complaining party, or
b. the party complained against, if the Commission determines that the complaint is clearly frivolous, or
c. the party complained against, if the district court determines that the complaint is frivolous and that the Commission dealt with the party complained against in a willful, wanton and oppressive manner, in which case, the Commission shall be ordered to pay such costs and attorneys fees; and
7. ordering a person to rehire, reinstate, and provide back pay to any employee or agent discriminated against because of obedience to the laws prohibiting discriminatory practices in housing.[35]
While the Human Rights Commission employs the general procedure to be followed by most discrimination claims, civil action may still be taken as long as it is filed within two years of the occurrence of the discriminatory practice or breach of a conciliation agreement in order to obtain relief.[36] Appropriate relief can include actual and punitive damages, reasonable attorney’s fees, and court costs.[37]
The Oklahoma Anti-Discrimination Act provides a number of remedies for parties that have been discriminated against. The first remedy available is a temporary injunction or restraining order. The Human Rights Commission can file one of these in the district court in the county the complaint occurs if it “has reason to believe that a respondent has engaged in any unlawful discriminatory practice.”[38] The complainant, respondent, or an aggrieved person for whom the complaint was filed may also elect to bring a civil action.[39] The civil action must not commence any later than the twenty days after notification of the Human Rights Commission’s decision on whether to bring charges, and notice of such a complaint must be given to the Human Rights Commission and to all other parties the charge relates.[40] In most employment cases, once the election to bring a civil suit is made, the Human Rights Commission authorizes the Attorney General to file a civil action in the district court where the respondent transacts business.[41]
IV. Case Law in Oklahoma
The Oklahoma Supreme Court in Burk v. K-Mart[42] considered a sexual harassment employment discrimination case and firmly rejected the implication of an obligation of good faith and fair dealing in every employment-at-will contract.[43] In doing so, the court recognized “the public policy exception to the at-will termination rule in a narrow class of cases in which the discharge is contrary to a clear mandate of public policy as articulated by constitutional, statutory or decisional law” in a tort law cause of action.[44] In recognizing a tort cause of action based on clear violation of public policy, Burk opened the door for many further court interpretations of not only the Oklahoma Anti-Discrimination Act, but also federal law’s applicability to employment discrimination claims in Oklahoma.
Even though Oklahoma has decided to somewhat replicate federal standards with respect to anti-discrimination law, the United States District Court for the Northern District of Oklahoma in Heckelmann v. Piping Companies, Inc. held that “a statutory action pursuant to the Oklahoma Anti-Discrimination Act or a common-law action pursuant to Burk[45] remains a state remedy, notwithstanding the existence of the ADEA.”[46] Hecklemann was a case that involved a two count petition (breach of contract and public policy violation) of a sixty-three year-old man who had served in a number of roles including director of Piping Companies, Inc. and Vice-President and Chief Operating Officer of Industrial Services Technology and was denied benefits he was promised upon his contract being terminated.[47]
In Tate v. Browning-Ferris, Inc., the Oklahoma Supreme Court considered the issue of whether an employee-plaintiff can state a tort cause of action based on the same facts that also violate state and federal statutes providing remedies for employment discrimination.[48] The court held that the federal statute, Title VII of the Civil Rights Act of 1964, did not preempt state law, and pursuant to the public policy exception to the at-will termination rule, recognized in Burk, the Oklahoma anti-discrimination statute neither explicitly nor implicitly provides an exclusive remedy for employment related discrimination.[49] While Tate focused on the issue of race discrimination, its holding remains precedent for other forms of employment discrimination, including age discrimination.
Writing in the Oklahoma Bar Journal, one commentator has opined, “Tate creates an unfavorable situation in that it appears to provide plaintiffs with procedural advantages and expanded availability of remedies.”[50] It further suggests that, under Tate, plaintiffs could be allowed to avoid the caps set on Title VII recovery by the Civil Rights Act of 1991 and seek punitive as well as compensatory damages, avoid removal to federal court by asserting only the state common law claim and not one that would allow federal jurisdiction, automatically obtain a jury trial based on the state law claim, and that a plaintiff could avoid the use of the EEOC all together including its time limitations for filing.[51]
V. The Future
As is the case with many issues dealing with the rights of older Americans, the aging baby boomer generation will have a major impact on how the ADEA and state statutes dealing with discrimination are constructed. Baby boomers will be the largest group of elders in American history, not just because of their sheer numbers, but also because the improvement in health care that means their life expectancies are longer as well. According to the AARP forty-five percent of older working adults plan to work until they reach seventy or even past that.[52] Older adults do not want to leave the working world as early as they have in the past. One of the main reasons, along with better physical health, is that with the latest crash in the stock market they are less financially able to retire.[53]
It is projected that between the years 2005 and 2015 twenty-six percent of U.S. workers will be over 65.[54] It will be interesting to see if new legislation or changes to existing law, such as the ADEA, come about to address these future problems. With “the biggest labor shortage in our lifetimes”[55] on the horizon, how will age discrimination legislation adapt? Regardless, it will become increasingly important to protect the rights of an increasing elderly population.
VI. Conclusion
Recently a fifty-eight-year-old former employee of Shangri-La Resort was awarded $75,000 in a settlement of her age discrimination claim, which involved the EEOC.[56] Along with paying the $75,000 settlement, Shangri-La must also provide training to supervisors, managers, and employees regarding age discrimination and other discrimination laws.[57] They must also inform employees of the complaint filing procedures for individuals that feel they have been discriminated against, and they must post notices defining and prohibiting discrimination, which are geared towards not only informing employees of their rights, but also helping the Oklahoma Human Resources Department receive complaints in a more efficient manner.[58] As the EEOC’s trial attorney from Oklahoma City, Michelle M. Robertson stated, employers “must understand their responsibilities under the ADEA and work diligently to see that the stereotypes regarding older employees are eliminated from the workplace.”[59]