Reverse Discrimination EEOC Allows Bias in Favor of People With Disabilities, Older Workers

By Bob Gregg

EEOC states that employers can discriminate in favor of people with disabilities or older workers. An Equal Employment Opportunity Commission discussion letter states that nothing in the Americans With Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws cover only one-way discrimination; they do not cover those without disabilities or the more youthful. This is different from the other EEOC laws, which prohibit discrimination against any race, any religion, any national origin and both genders, equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or not having a disability. The moment the plaintiff claims that a preference for a person with a disability or an older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Age Discrimination

“He’s going to leave here at 62, and I’ll see to it!” It is difficult to defend an age-discrimination case when the discharged employee’s manager has made comments like the above. The manager also stated, “He’s been here long enough and he ought to go on Social Security.” The manager claimed the employee was terminated for poor performance. However, the court found that her overt statements about age undermined the poor-performance defense. Hale v. ABF Freight System, Inc. (6th Cir., 2012). A message from this case is that even if there might have been a performance problem, a manager can destroy any defense of a case by unwise, prejudicial statements. These may be made in angry frustration over real poor performance, but will overshadow any performance issue and lose the case.

Six-and-a-half years makes a difference. The ADEA protects older workers and applicants, including those older than others within the over-40 group. However, the courts recognize “approximately the same” age. Thus, a 60-year-old cannot effectively claim it was age discrimination to hire a 58-year-old, because they are approximately equal in age. The 6th Circuit has adopted a six-year range. A 57-year-old tech-college employee was fired and replaced by a 51-year-old. The employer argued that the case should be dismissed under the six-year “approximately the same” age rule. However, the court found a six-and-a-half-year age difference and ruled that there was enough difference in age to allow a prima facie ADEA case. Blizzard v. Marion Tech College (6th Cir., 2012).

Disability Discrimination

$4.85 million settlement due to discriminatory leave policy. A trucking company’s leave practice automatically terminated anyone unable to return to work after 12 weeks of medical leave, regardless of reason. This conformed with the Family and Medical Leave Act but violated the ADA, which requires consideration of a “reasonable amount of leave.” The EEOC brought suit due to the failure to consider disability exceptions to a rigid policy. In addition to the money, the settlement also included revision of policies, training of supervisors and employees, and appointment of a monitor—at company expense—to assure ADA compliance. EEOC v. Interstate Distributor Co. (D. Col., 2012). [For years the courts have ruled that the FMLA and ADA have different requirements, and simply allowing the 12 weeks for FMLA is not sufficient for ADA compliance. The courts have also routinely found fault with rigid leave policies and “no fault” (no excuse) attendance discharge policies which do not allow the interactive consideration process required by the ADA.]

Family and Medical Leave Act

School district has burden of proving that teachers did not work enough hours. A teacher was denied tenure at the end of his probationary period, though he received the highest possible ratings in almost all evaluation areas. The downfall was the “excessive absence” due to gall bladder surgery in the months before. He sued, claiming FMLA retaliation. The district defended by claiming the teacher had not worked the 1,250 hours necessary to be covered by FMLA—he was three hours short. However, he claimed to have regularly worked an hour a day outside of normal hours on items integral to teaching—preparing lessons, materials, etc. The court found that under the FMLA, the employer has the burden to “clearly demonstrate” that an employee did not work enough hours to be eligible. The court recognized that teachers often devote extra time “outside the contract negotiated hours.” Since the school district could not prove otherwise, the court found in favor of the teacher on the hours issue. Donnelly v. Greenburgh Central School Dist. (2nd Cir., 2012).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at

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