Both the victim and the harasser may be any sex, and the victim and harasser may be the same sex or a different sex. Although the law doesn't prohibit minor teasing, offhand comments, or isolated incidents that are not frequent or serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision such as the victim being fired or demoted.
The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, a subordinate, or someone who is not an employee of the employer, such as a client or customer. An employment policy or practice that applies to everyone, regardless of sex, can be illegal if it has a negative impact on the employment of people of a certain sex and is not job-related or necessary to the operation of the business.
Federal employees have 45 days to contact an EEO Counselor. Breadcrumb Home Sex-Based Discrimination. 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.
Retirement benefits provide former employees with a source of income after completion of their employment. 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.
In most cases, retirement benefits are offered through defined benefit or defined contribution plans or through a combination of the two. 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.
Under a defined contribution plan, the employer makes set contributions to individual accounts for each plan participant. The amount of the retirement benefit then depends on the earnings of the employee's account. A " k " plan is an example of a defined contribution plan. 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.
In some cases, employers may offer employees the opportunity to retire early -- that is, before they have reached normal retirement age or served the requisite number of years - in exchange for additional benefits to which those employees would not otherwise have been entitled.
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. This Section applies where an individual has been denied benefits -- or has received lower benefits -- because of his age, disability, race, color, sex, national origin, or religion, or motivated by retaliation.
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.
This Section addresses the ADEA first, because that law contains extensive provisions that explicitly govern analysis of claims involving these types of benefits. These provisions permit employers 5 to give lower benefits to older than to younger workers in some circumstances.
This Section explains when lower benefits are permissible, and what an employer must prove to justify giving them.
The ADA also permits employers to make certain disability-based distinctions in employee benefits. This Section addresses some of the questions that must be resolved in analyzing ADA benefit claims. Under Title VII, an employer may never base benefit decisions on race, color, sex, national origin, or religion.
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. Under all three laws, employers will be liable for discrimination in benefits whether the employer chooses to provide the benefits itself or to purchase benefits or a package of benefits from an insurer or other entity.
Where an employer has engaged in discrimination during the term of an employee's employment, charging parties will typically be current employees. These former employees may challenge such discrimination, and investigators should accept such charges. If an employer provides fringe benefits to its employees, it generally must do so without regard to an employee's age.
Employers may, however, provide lower benefits to older than to younger workers in limited circumstances. This section discusses those circumstances. The first question in evaluating employee benefits is whether the employer has provided lesser benefits to older than to younger workers. If the benefits are the same, there is no need to proceed further. If the benefits given to an older worker are not the same as those provided to a younger employee, the next question is whether any difference is permitted by the ADEA.
For the types of benefits discussed in this Section, employers may provide a lesser level or duration of benefits to older workers:. In limited circumstances, the ADEA also permits employers to offer early retirement incentives that give lower benefits to older workers. Some employers may try to defend benefit disparities on the ground that the plan meets the requirements of the Employee Retirement Income Security Act of ERISA , which governs the establishment, coverage, and management of employee benefit plans, or the Internal Revenue Code.
For purposes of this analysis, benefits are "equal" only where they are the same for older and younger workers in all respects. 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. EXAMPLE - Benefits are not equal if 55 year olds can choose between lump-sum pension distributions and annuities but 65 year olds must take pension benefits in an annuity.
EXAMPLE - Benefits are not equal if laid-off 55 year olds get severance pay and job retraining, while laid-off 65 year olds get severance pay and life insurance -- even if the monetary value of the benefits paid to each is the same.
EXAMPLE - Life insurance benefits are equal if 50 year olds and 70 year oldsboth get a death benefit of three times their annual salary. As long as the formula for calculating benefits is the same, the actual coverage provided toolder and younger employees may differ. EXAMPLE - Severance benefits are equal if, for all employees, they arecalculated based on years of service, even if a younger employee with more years of service then gets a higher benefit than an older employee with fewer years of service.
Benefits will also be equal if the employer's plan provides that older and younger employees will be paid the same monthly amounts until their deaths - even if the older employee has a shorter life expectancy and is thus likely to receive less in total benefits.
Both retirees were making the same salary, had worked for the employer for the same number of years before their retirement, and are entitled to receive the pension benefits until the date of their deaths.
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. Benefits will not be equal, on the other hand, where a plan sets a specific, age-based cutoff for the length of time employees can receive payments. Under Employer O's plan, each employee will receive the same monthly amount -- but older employees will get fewer payments, based on their age, than their younger counterparts.
Because the cutoff of benefits is expressly age-based, these benefits are not equal. EXAMPLE - Employer L pays long-term disability benefits on the followingschedule: employees disabled between the ages of 50 and 54 receive monthly payments for 10 years; employees disabled between the ages of 55 and 59 receive payments for 5 years; employees disabled at ages 60 or above are not eligible for any benefits at all.
Because their duration, and even availability, differs based on the age at which an employee becomes disabled, these benefits are not equal. In some cases, it may be clear from the face of a benefit plan that older workers are getting lower benefits than their younger counterparts on the basis of age. These benefits are explicitly tied to, and reduced because of, the recipient's age.
Moreover, benefits will not be equal where a plan reduces or eliminates benefits based on a criterion that is explicitly defined in whole or in part by age. 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. To evaluate whether older and younger workers are receiving equal benefits where benefits are not explicitly tied to age or age-based factors, compare similarly situated older and younger workers.
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. 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. An investigator does not need to identify a specific younger employee who has benefitted at the expense of an older employee.
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.
The investigator should determine whether the identified coworker has the same number of years of service and the same salary as CP, or whether there are other younger employees on disability retirement who are appropriate comparators.
If so, the investigator should determine how much in disability retirement benefits each comparator receives. In appropriate cases, employers may be asked to assist in generating such computations. Investigators may wish to chart the relevant information as follows.
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. The ultimate question in this portion of the analysis is whether older employees have received less favorable benefits than younger employees on the basis of age. 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.
The Commission's ADEA regulations permit employers to provide additional benefits to older workers where the employer has a reasonable basis to conclude that the benefits will counteract problems related to age discrimination. 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. If benefits are lower for older workers, a violation will be found unless the unequal benefits can be justified. The possible justifications are discussed in the sections below. Under the ADEA, an employer that spends the same amount of money, or incurs the same cost, on behalf of older workers as on behalf of younger workers may -- if specified conditions are met -- provide certain fringe benefits to older workers in smaller amounts or for shorter time periods than it provides to younger workers.
This is known as the "equal cost" defense. It is the employer's obligation to prove that all aspects of the defense have been met. A principal objective of the ADEA was to encourage the hiring and retention of older workers. 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. The equal cost defense is not available for all benefits. 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:. Many benefits do not become more expensive to provide as people get older. 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. To satisfy the equal cost defense, an employer must show that all of the following are satisfied. The costs of life insurance, health insurance, and long-term disability benefits typically rise with age. 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. A plan is bona fide if its terms are accurately described in writing to all employees. 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 lower level or duration of benefits for older workers must be explicitly required by the plan. The defense will not be met if the plan simply gives the employer discretion to pay lower benefits to older workers if it wishes. The employer must pay the same premiums for the benefit for each of its employees regardless of age.
In many group benefit plans, an employer will be charged a per capita rate for each of its employees -- that is, its total premium will be calculated by multiplying the number of employees times a set amount that the insurer charges to each person to cover the risks posed by the group. 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. Where an employer cannot show that it has been charged a per capita rate, or where the employer has purchased more than one benefit as part of a package, investigators may need to seek additional information to show that the employer has incurred equal cost for a the particular benefit at issue for b each of its employees regardless of age.
Employers may need to obtain documents from their insurers to provide these data. While burdens of proof are not formally assigned during the administrative process, it is the employer's responsibility to produce the relevant documentation during the investigation. 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. Employer L may need to solicit data from its insurer. Even if an employer has paid the same premium for each benefit for each of its employees, there is more to the inquiry. The employer also must show that the reduction in benefits given to older workers is justified by age-based costs.
Even if a benefit is of a type whose costs generally increase with age, an employer must demonstrate that the particular reductions in its benefits are cost-justified -- that is, that the benefit provided to older workers is no lower than is necessary to achieve equivalency in costs. In many cases, this showing will require the use of actuarial data. Actuarial data are used in calculating the rates that will be charged for insurance -- or the amount of insurance that a particular payment will purchase -- because they measure the likelihood that an event, like death or disability, will occur.
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. Because the likelihood of death, illness, or disability increases with age, the cost of insuring against these events rises correspondingly. While an employer may thus reduce these benefits, it must show that the reduction is no greater than is necessary to equalize its costs.
Q may not reduce the benefits by any greater amount. This plan thus violates the ADEA. Employers are permitted to use age brackets of up to five years for purposes of making these calculations. 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. The justification for particular benefit reductions must be evaluated based on the facts of a particular case.
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.
The previous sections deal with a benefit-by-benefit analysis. Employers are also permitted to offer certain benefits in a "benefit package. 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. This is permissible if all other aspects of benefit packaging are satisfied. This is not permissible. The following equal cost rules apply where an employer requires that employees contribute to the funding of available benefits and where the premium for those benefits increases with age. 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.
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. In limited circumstances, employers may offset the amount of certain types of benefits they provide to their older employees with age-based benefits those employees receive, such as Medicare, Social Security, or certain other employer-provided benefits.
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:. Each authorized offset is also subject to certain rules that pertain specifically to that offset. 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: 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. Clearly, older employees receive less coverage than do younger employees because of age. The plan will be unlawful unless the employer can prove that the lower benefits are justified. Because life expectancy decreases with age, the likelihood that the benefit will be claimed in the time period covered by the premium increases. 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. Note that the employer has used age bracketing in this example. Thus, the employer must show that the actuarial data support five year groupings e.
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 Under the laws governing the Medicare program, an employer must offer to current employees who are 65 or over -- that is, who are at or over the age of eligibility for Medicare benefits for the "working aged" -- the same health benefits, under the same conditions, that it offers to any current employee under the age of Where an employer adheres to this standard, there will be no violation of the ADEA, and investigators need make no further inquiry.
Medicare provisions do not, however, require an employer to offer the same health benefits to retirees who are over the age of 65 as it offers to retirees who are younger than that age. As the only court to have considered this issue has recognized, "Medicare status is a direct proxy for age;" thus, this is an age-based cap on benefits, and the ADEA requires that the employer justify its actions.
Erie County Retirees Ass'n v. County of Erie, F. If it reduces health benefits to older retirees on the basis of Medicare eligibility, an employer may avoid liability for age discrimination by showing either:.
Under principles set forth in EEOC regulations, employers may take the availability of Medicare benefits into account in structuring their health benefits to older retirees. These plans are generally known as "Medicare carve-out" plans, and will be lawful under the ADEA as long as the total health coverage available to older retirees is at least equal, in type and value, to that offered by the employer for younger retirees.
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 days per year of inpatient care in a hospital for retirees who are under 65 years of age. Assume that Medicare covers days per year of inpatient care for individuals who are 65 or above.
Employer M has not violated the ADEA, because all retirees get coverage for days of hospital care. Where, on the other hand, older retirees do not receive an equal benefit -- where, that is, an employer provides health benefits for younger retirees of a type or value that is not matched under Medicare and does not provide those benefits to older retirees -- the employer will be required to meet the equal cost defense to justify the resulting age-based inequality in benefits.
Because Medicare recipients will be covered for a total of only days of inpatient care days from Medicare and 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. County of Erie , F. 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.
Although the ADEA spells out certain detailed exceptions to this basic principle, 28 the Third Circuit has held that, "aside from [the equal cost defense], there is no provision in the ADEA permitting an employer to treat retirees differently with respect to health benefits based on Medicare eligibility. Unless the employer can meet the equal cost defense, the law does not permit this age discrimination.
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 With respect to disabilities that occur after age 60, the plan states that benefits will cease 5 years after disablement.
Although Employer D pays the same monthly amount to each recipient, it pays those amounts for different periods of time depending on the age of the individual. As a result, the benefits are not equal and will be unlawful under the ADEA unless they can be justified. Employer D has met the formal requirements for the equal cost defense.
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. In this example, Employer D has reduced the length of time disability benefits will be paid, rather than the amount of those benefits. The ADEA permits either approach. In addition, EEOC regulations set a "safe harbor" for permissible limits on the duration of long-term disability benefits.
If an employer adheres to this schedule, it has not violated the ADEA; the employer need not produce individualized cost data. This is the only "safe harbor" authorized by the EEOC regulations. Where a schedule for long-term disability benefits differs from that set forth above, employers must show that their particular plan meets the requirements of the equal cost defense.
The schedule of benefits is as follows:. Employer J has chosen a schedule that differs from the specific safe harbor set out in the regulations. 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. Of course, an employer must also satisfy the standard requirements of the equal cost defense if it reduces the amount of the benefit rather than the length of time the benefit is paid, or reduces both the amount and the duration.
Employers may offset from the disability benefits they pay any government-provided disability benefit that an employee is eligible to receive. 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. In two cases, moreover, employers may also reduce long-term disability benefits to an older worker by the amount of the worker's pension benefits that are attributable to employer contributions.
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. CP is injured and placed on the employer's long-term disability plan at the age of 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 When CP reaches the age of 65 - normal retirement age under the pension plan -- Employer R eliminates his disability benefits.
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 disability plan provides that all employees who are receiving disability benefits will be guaranteed a position with Employer R when they are able to return to work. Employer R denies CP's request, however, stating that his decision to receive pension payments when he turned 65 meant that he was "retired" and thus forfeited his right to an automatic recall.
Where an individual would have remained on long-term disability absent a pension offset, therefore, an employer must offer the individual the same recall rights that are available to those still receiving long-term disability payments.
Under their employer's disability retirement plan, employees get monthly payments that are calculated based on their years of service. A and B thus get the same disability retirement benefit. There is no violation of the ADEA. EXAMPLE - Same facts as above, except that the employer's disability retirement plan provides that disabled employees will receive payments based on the number of years they would have worked had they worked until normal retirement age.
Normal retirement age under the pension plan is Under this formula, A will receive a disability retirement pension based on 40 years of service 10 years of actual service plus 30 years of attributed service from age 30 to age 60 , while B will receive a disability retirement pension based only on 15 years of service 10 years of actual service with 5 years of attributed service until B reaches A's disability retirement pension will thus be almost three times the size of B's, even though both worked for the employer for the same number of years.
Basing disability retirement benefits on the number of years a disabled employee would have worked until normal retirement age by definition gives more constructive years of service to younger than to older employees. In the example above, the employer would have to show that -- accounting for the likelihood that more workers will qualify for disability retirement as they get older -- it costs as much to pay disability retirement to 55 year olds based on 5 extra years of service as it does to pay disability retirement to 30 year olds based on 30 extra years of service.
If an employer cannot make this showing, it is liable for a violation of the ADEA. As with long-term disability benefits, an employer may deduct from disability retirement payments any government-provided disability benefits an employee is eligible to receive. As a general rule, employers must provide equal severance benefits to similarly situated employees without regard to age.
An employer may not deny severance benefits to employees because they are eligible to receive a pension from the employer, 37 or except as explained in Section IV E 3 , below offset those pension benefits against the severance that is paid. The employer shuts down one of its plants. However, the employer makes one exception -- it refuses to provide severance benefits or recall rights to any employees who are eligible to receive pensions at the time of the closing.
EXAMPLE - Same facts as above, except that Employer F allows employees who are eligible for pensions to receive severance payments -- but only for the amount that exceeds the amount of their pension benefits. Although Employer F has not denied CP severance payments altogether, it has reduced those payments by the amount of CP's pension.
CP thus receives lower severance benefits than younger workers on the basis of his age. This offset of basic pension benefits is impermissible.
The equal cost defense does not apply to severance benefits. This is because severance benefits cost no more to provide to an older employee than to a younger employee with the same years of service. There are limited circumstances, however, in which the ADEA permits employers to make lower severance payments to older than to younger workers.
There are two types of benefits that may be offset from the amount of severance benefits employers pay to older employees:. However, CP chooses to accept retiree health coverage from the employer. The coverage is comparable to Medicare benefits, and benefits will be paid for life. CP is also eligible for an immediate pension benefit from the employer.
Under these circumstances, the employer may take an offset from CP's severance benefits for the health benefits it pays. CP's employer offers her lifetime retiree health benefits, which she declines. The employer nonetheless attempts to offset CP's severance package by the value of the health benefits. The ADEA assigns specific values for offsets for retiree health benefits that meet the requisite standards.
These values are based on a the age of the individual at the time of termination, and b the duration of the health coverage. CP, age 60, accepts the benefits and is also eligible for a pension.
EXAMPLE - Employer L's retirement plan states that normal retirement age is 65, but permits employees to retire at age 60 with a 10 percent reduction in pension benefits. Employer L lays off CP when she is 60 years old. CP is receiving lifetime retiree health benefits that are comparable to Medicare, but must pay 50 percent of the premium for those benefits.
She is also eligible for an immediate and unreduced pension from the employer. The investigator should find no cause. However, where it delivers, it delivers in spades. The best cam sites have hundreds of models on their site, and ImLive is no different. In fact, webcam sites seldom get as hot as ImLive.
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