Age Discrimination in Employment Act (ADEA)

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As we previously posted, the Centers for Disease Control and Prevention (CDC) CDC recently issued guidance on reopening the workplace. In its latest update on June 11, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Frequently Asked Questions (the Guidance) to provide further guidance on returning employees to the workplace. Notably, the Guidance covers (1) the return of high-risk workers to the workplace, (2) how to properly handle COVID-19-related accommodations requests, and (3) how to appropriately respond to pandemic-related harassment. As we discussed in our last post, employers should be wary of toeing the line on the issues highlighted below, as they may become prevalent in the wave of litigation expected to arise in the wake of the pandemic.

Employers may not involuntarily exclude older or pregnant workers from the workplace

In its updated Guidance, the EEOC cautions that the Age Discrimination in Employment Act (ADEA) – which prohibits discrimination in the workplace against individuals aged 40 and older – does not permit an employer to involuntarily exclude an employee from the workplace based solely on their age, “even if the employer acted for benevolent reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.” The Guidance specifically pertains to employees aged 65 years and older, who are considered by the CDC to be at a higher risk of serious illness due to COVID-19. Moreover, the EEOC has stated that employers may still provide flexible working arrangements for workers aged 65 and older, and that doing so will not be viewed as treating younger workers (ages 40 to 64) less favorably.

Additionally, under Title VII of the Civil Rights Act (Title VII), employers are prohibited from involuntarily excluding from the workplace, furloughing, or placing on leave, pregnant employees, even if the intent behind the decision is to protect the employee’s health and safety.Continue Reading EEOC provides updated guidance related to excluding high-risk workers, required accommodations, and pandemic-based harassment

The U.S. Centers for Disease Control and Prevention (CDC) recently released new guidance (the Guidance) and a flowchart (the Flowchart) detailing how states can safely reopen businesses and schools in the wake of the COVID-19 pandemic. The 60-page guidance document covers a wide range of topics, including surveilling, contact tracing, and controlling COVID-19 cases.

The Guidance provides generalized recommendations, while simultaneously cautioning employers to tailor the Guidance based on the state and industry within which the employer operates. For each set of recommendations, the CDC creates a three-step program to safely scale up operations, with Step One requiring the most stringent measures of mitigation and Step Three requiring the least. The Guidance also provides more specific recommendations that highlight additional considerations for reopening mass transit, childcare programs, day camps, restaurants, and bars, as well as businesses that employ workers at high risk for severe illness due to COVID-19.
Continue Reading CDC issues new guidance on reopening the workplace

The U.S. Court of Appeals for the Seventh Circuit recently reversed its prior decision and upheld an Illinois district court ruling that the federal Age Discrimination in Employment Act (ADEA) does not protect job applicants from disparate impact claims. But beware, as this seemingly apparent win for employers in Illinois, Indiana, and Wisconsin may drive employees to bring their claims under more forgiving state anti-discrimination laws, which often provide for greater damages.

Case background and decision

The plaintiff in Kleber v. CareFusion Corporation, No. 17-1206, 2019 WL 290241 (7th Cir. Jan. 25, 2019) was a 58-year-old attorney who applied for and was denied a general counsel position. The job posting sought an attorney with three to seven years of experience. CareFusion hired a 29-year-old attorney for the role. In his lawsuit, Kleber argued that CareFusion’s “cap” on experience effectively weeded out older applicants.

Initially, a three-judge Seventh Circuit panel found that the ADEA did apply to disparate impact claims by job seekers. But when the full Seventh Circuit reheard the case, it ruled 8–4 that Section 4(a)(2) of the ADEA covers only discrimination against current employees, meaning that non-employee job seekers cannot sue companies for so-called disparate impact claims alleging neutral practices that adversely affect older applicants, thus affirming the district court’s original finding. Comparing the text of various ADEA provisions, the full Seventh Circuit’s majority opinion concluded that Congress did not intend for the Act to cover applicants asserting disparate impact claims.

Importantly, the ruling does not limit an applicant’s ability to sue for intentional age discrimination, such as a potentially ageist comment by a recruiter or a job posting stating “applicants over 40 need not apply.”

The Seventh Circuit joins the Eleventh Circuit (covering Alabama, Florida, and Georgia), which issued a similar ruling in 2016.Continue Reading Seventh Circuit limits ADEA’s scope, but beware state law