Age Discrimination
in Employment
With longer life expectancies and better access to health care, more people
are staying active longer and want to remain in the work force past traditional
retirement age. Also, many elderly people need the income from employment.
Consequently, employers have far more elderly employees, and the number
of elderly job applicants is higher than at any other time in history.
Unfortunately, incidents of age-based job discrimination also are on the
rise.
Seniors in California
have two basic means--one state, one federal--with which to counter age
discrimination in the workplace: the California Fair Employment and Housing
Act and the Federal Age Discrimination in Employment Act of 1967.
California
Fair Employment and Housing Act
The California Fair Employment and Housing Act (FEHA) is a comprehensive
anti-discrimination law prohibiting labor organizations, employers and
employment agencies from discriminating based on age, ancestry, color,
creed, disability, marital status, medical condition, national origin,
race, religion, or sex. Under the FEHA, it is illegal in most instances
for an employer to use a person's age as a basis for decisions regarding
hiring, recruitment, pay, promotion, transfer, discharge, discipline or
privileges if the person is over the age of 40. For example, an employer
cannot replace an older worker with a younger worker simply because the
employer wants a young work force. Involuntary retirement before the age
of 70 generally is prohibited. The FEHA does permit an employer to offer
various insurance plans or other fringe benefits to an employee based
on age, as long as the cost to the employer is reasonably equivalent for
all employees.
Any person who feels
victimized by a violation of FEHA must file a charge with the California
Department of Fair Employment and Housing (DFEH) before pursuing a claim
in court against the employer. A charge filed under the FEHA must be filed
within one year of the discriminatory action. For example, if an older
person is fired and believes the motive was age discrimination, the charge
must be filed within one year of the employer's notice of termination.
Age Discrimination
in Employment Act of 1967
The Federal Age Discrimination in Employment Act of 1967 (ADEA) also prohibits
age-based discrimination by labor organizations, employers, and employment
agencies. Under the ADEA, employers are prohibited from using age as a
basis for making hiring, firing, promotion, or compensation decisions,
and from limiting, segregating, or classifying employees in any way that
would deprive or tend to deprive an individual of employment opportunities
or otherwise adversely affect his or her status. ADEA specifically prohibits
the use of job advertisements that specify an applicant should be "young"
or a "recent graduate," or that use terms such as "retired"
or "over 65."
The ADEA has five
major exceptions to its coverage. Employers accused of violating the ADEA
usually invoke one or more of these exceptions as a defense for their
actions:
Tenured faculty members.
Until recently, the ADEA did not prohibit compulsory retirement at age
70 for tenured faculty members at institutions of higher learning. This
exception expired on December 31, 1993, so compulsory retirement ages
for tenured faculty no longer are permissible.
Executives and policy
makers. A small number of high-level employees with substantial executive
authority are not covered by the ADEA and can be subjected to compulsory
retirement at age 70. This exception is very narrow and does not allow
for compulsory retirement policies for mid-level managers.
Good cause. An employer
is permitted to discharge an employee for "good cause," a catch-all
category that includes many different forms of failure to do a job adequately.
Occupational requirement.
In certain narrowly defined situations, an action otherwise impermissible
under the ADEA may be legal if the employer's action is "reasonably
necessary to the operation of the business" or is based on "reasonable
factors other than age." For example, employers may have mandatory
retirement policies for firefighters and airplane pilots.
Bona fide seniority
systems and employee benefit plans. Generally, it is permissible for an
employer to adopt a bona fide seniority system or employee benefit plan
as long as the system or plan is not intended to evade the purposes of
the ADEA.
A victim of age-based discrimination must bring an action under the ADEA
against his or her employer within two years of a non-willful violation
or within three years of a willful violation.
Relationship
Between FEHA and ADEA
The relationship between the FEHA and the ADEA is complex, primarily because
the ADEA was not intended to supersede or replace existing state regulations
regarding age-based discrimination. Both laws cover age discrimination
in employment. An aggrieved person must file a charge with the California
DFEH for relief under the FEHA; the Department forwards the complaint
to the Federal Equal Employment Opportunity Commission (EEOC). There are
other rules concerning the relationship between the state and federal
systems. Because of the complex interplay between the two laws and because
they have different statutes of limitation, a lawyer or representative
of the EEOC or DFEH can advise a victim of age discrimination on how,
when, and where to proceed against an employer.
Health Care Decisions
and Protective Arrangements
With people living longer than ever before and medical technology advancing
at a rapid pace, more people are beginning to plan now for their future
health care. California law provides for different arrangements in which
people may set forth in advance what will happen should they become incapacitated
and unable to make health care decisions. These arrangements are designed
to protect individuals who, in varying degrees, are unable to care for
themselves. Because much of the law in this area is new and is evolving
rapidly, it can appear confusing, even contradictory, at times. This is
one area of law for which it is especially important to hire good legal
counsel who can be relied upon to stay abreast of important new laws and
recommend appropriate changes.
Natural Death
Act Declaration
California's Natural Death Act allows a person who is over 18 years of
age and of sound mind to write a declaration stating what should happen
if he or she develops an incurable and irreversible condition. In some
other states, this kind of declaration is called a living will. These
declarations are controversial and, although many states refuse to recognize
them, they are recognized in California. California also recognizes a
declaration or living will written in another state in accordance with
that state's laws.
Any competent adult
can make a declaration. Although many people have declarations drafted
by their lawyers at the same time they have their wills drafted, declarations
do not need to be drafted by lawyers. California has a suggested form,
which people may use if they wish. Many people seek advice from a doctor
before drafting a declaration so they can describe their wishes specifically,
taking into account the kinds of medical technology currently available
to them. The declaration states exactly what the declarant wishes if a
terminal condition is diagnosed by two physicians, including the withholding
or withdrawing of treatment or artificially administered nutrition and
hydration that prolongs the dying process. It is useful for a person who
signs a declaration to inform his or her doctor of what the declaration
says. The most important point about a declaration of this kind is that
the individual decides how much and what kind of health care he or she
wants.
Request to
Forego Resuscitative Measures
A request to forego resuscitative measures is a particular written document
authorized by California statutory law. People who do not want emergency,
hospital, or other health care providers to use measures to revive them
in cases of medical emergency may register their wishes on this type of
written document. This document must be signed by the individual who is
the subject of the document, or by a legally recognized surrogate authorized
to make health care decisions on behalf of the individual and a physician.
If the surrogate and the physician sign the document in lieu of the individual,
it must contain a statement that the request not to resuscitate is consistent
with the known desires of the individual. A person may obtain and wear
a medallion engraved with "do not resuscitate" or "DNR"
as well as other identifying information that indicates the person has
signed the do-not-resuscitate document.
Durable Power
of Attorney for Health Care
Another type of document that governs health care decisions is a durable
power of attorney for health care. A durable power of attorney for health
care is a document that one person (the principal) signs in order to give
another person (the attorney-in-fact or agent) authority to make health
care decisions if the principal becomes incapacitated. A person's health
condition does not have to be terminal for a durable power of attorney
for health care to be effective.
The durable power
of attorney for health care sets out exactly what the agent will do if
the principal becomes unable to make health care decisions. Generally,
it gives the attorney-in-fact the right to receive medical information
about the principal; to receive or release medical records; and to consent
to medical treatment, including abortion, commitment to a mental health
facility, and sterilization. It may state that the agent has complete
authority to make health care decisions based on what the agent believes
the principal would want, or it may state specifically what the health
care decisions should be. For example, the document may contain a general
declaration that the attorney-in-fact may consent, refuse to consent,
or withdraw consent to the principal's care or treatment.
Any person may be
designated an attorney-in-fact for health care decisions concerning another
person, except for treating health care providers and certain other health
care workers. California has a suggested form for the durable power of
attorney for health care, or a principal may write his or her own durable
power of attorney for health care as long as it contains certain information
required by law. The durable power of attorney for health care must name
the attorney-in-fact, describe the power the agent will have, and be signed
by the principal and dated while the principal still is able to make his
or her own decisions. The form must be signed by witnesses, only one of
whom may be related to the principal. Treating health care providers are
not authorized to witness these documents.
A valid durable power
of attorney for health care made in another state is recognized in California.
Conservatorship
California conservatorship law provides that a court may appoint a conservator--similar
to a guardian--should the person ever become mentally or physically incapable
of making personal or financial decisions. The conservator may be appointed
as a conservator of the person or a conservator of the person's estate,
or both. A limited conservator may be appointed to manage the person or
the estate of a developmentally disabled adult. The purpose of a conservatorship
is to protect and provide for adults in need of such assistance, in accordance
with the best interests of those in need.
To create a conservatorship,
a petition may be submitted to the court by any person, including any
of the following:
- The proposed conservator
- The proposed conservatee
(the person in need of a conservator)
- The spouse or a
relative or friend of the proposed conservatee, or another interested
person
An interested state
or local agency, employee of the agency, or public officer
Usually a petition is made by a family member or close friend concerned
about the person's competence to manage property or make personal decisions.
The petition must include the name, address, and other information about
the proposed conservator and conservatee, relatives, and the petitioner,
and the reasons why a conservatorship is necessary. Also required is information
about:
- The proposed conservatee's
inability to provide for clothing, food, health, and shelter
- Whether the proposed
conservator will be able to live in the conservatee's residence
- The other alternatives
considered and rejected by the petitioner
- Health and social
services the proposed conservatee received during the year preceding
the petition
- The proposed conservatee's
inability to manage his or her finances
The petitioner has
the burden of showing good cause why the conservator should be appointed
by the court.
For many families,
conservatorship causes a drastic change in the family relationship, especially
when not all family members agree that a petition for conservatorship
should be filed. Some of this potential stress can be avoided if aging
people create documents such as a durable power of attorney for health
care while they are legally competent. Another option is to create a living
trust, which is discussed in the Estate Planning, Wills & Trusts Chapter
of this Guide.
Commitment
to a State Institution
Commitment to a mental hospital or institution sometimes becomes an issue
for elderly people. Competent adults in California may request voluntary
admission to a mental hospital or institution by way of written application.
If the adult is not competent to make the application, his or her conservator
may apply. (A minor may be admitted voluntarily by application of his
or her parent, guardian, or conservator.)
The director of the
facility will deem the individual suitable to be admitted upon receipt
of the application. Once admitted, the person's records are copied to
the California Department of Mental Health. Usually, the state pays for
the care of a person who is committed to a state-run mental health facility,
and insurance or Medi-Cal (discussed in the Social Security Law Chapter)
covers the cost of care in a private institution. Any person admitted
voluntarily to a mental hospital or institution must be discharged if
the person or his or her conservator indicates a desire to leave.
Social Security
The Social Security Act governs several public benefit programs of interest
to elderly people. Most of these programs are financed by taxes levied
on workers. The largest Social Security programs provide benefits for
retired people and for people with disabilities. The Social Security programs
are extremely complex.
Contact
the Office to schedule a Consultation to discuss how Robert Spitz,
Esq. can use his expertise to assist you in your Eldercare Law needs.
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