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In an ERI, older employees typically are offered a financial incentive in exchange for their agreement to leave the workforce earlier than they had planned.

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Since the older workers who accept the incentive usually are the higher-paid individuals in the workforce, employers often can save far more with an ERI than with an involuntary reduction-in-force. The older employees also benefit inasmuch as they are able to retire with larger benefits earlier than otherwise would have been possible.

An employer may not, however, provide a lower level of ERI benefits or no benefits to older employees than to similarly situated younger employees unless the employer can justify lower benefits in one of five ways set forth in the law. Older workers may not be forced to take early retirement. The determination of whether an ERI is voluntary will be based upon the facts and circumstances of a particular case. The test is whether, under those circumstances, a reasonable person would have concluded that there was no choice but to accept the offer.

A plan will not be voluntary if an employee was given inadequate time or insufficient information to make an informed decision about whether to accept the employer's offer. Where an employee or group of employees is asked to sign a waiver of rights under the ADEA in exchange for the ERI, moreover, specific time limits apply; an individual must be given at least 21 days, and a group of employees at least 45 days, to consider the waiver.

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On the other hand, it is not coercion for an employer to notify its work force that layoffs will be necessary if insufficient numbers of employees retire voluntarily, unless older workers are the only ones threatened. It is also not coercion that an employer's offer was "too good to refuse. EXAMPLE - Employer E offers an early retirement incentive to those employees who are 55 or older and who have at least 10 years of service. Employer E tells the employees that they have until the end of the business day to decide whether to accept the incentive.

Employer E's supervisors also visit all eligible employees to advise them that the company president will be "very unhappy" and will be "forced to reconsider their standing in the company" if they decline the offer. This ERI is not voluntary. If an employee's decision to accept early retirement was not voluntary, the investigator should find cause.

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If a plan is voluntary, the next question is whether it provides equal benefits to older and similarly situated younger employees. Benefits must be the same in all respects e. If it does not pay equal benefits to older and younger employees, the employer must justify the difference. Each of the five justifications set forth in the ADEA is discussed below.

The employer will not have violated the ADEA if it can make any one of these showings. Employers may try to demonstrate that lower levels of ERI benefits for older workers are justified by age-based cost considerations - that is, that they are spending equal amounts on benefits for all of their employees but that those amounts purchase less for older workers. Because the cost of early retirement benefits does not generally increase with age, this showing is unlikely to be successful.

Employers may limit ERIs, or pay higher ERI benefits, to younger employees where the benefits are used to bring those who retire early up to the level of an unreduced pension - that is, to the amount that those employees would receive at normal retirement age. Employer C offers all employees who are between the ages of 55 and 65 an ERI that pays the difference between the annual pension benefit those employees would have received for early retirement under Employer C's regular pension plan and the benefit they would have received at normal retirement age.

Employer C's ERI is lawful under the ADEA. Although the ERI provides a greater benefit for younger employees than for older employees indeed, employees over 65 gain nothing from the ERIall similarly situated employees who are 55 and older will receive the same annual pension benefit.

This ERI is also lawful. Employer C may offer any amount up to the level of the pension to which Employee E would have been entitled at normal retirement age; it need not offer the full amount necessary to close the gap. An employer may offer an ERI that, for persons who are not yet eligible for Social Security retirement benefits, "bridges the gap" between early retirement and Social Security eligibility generally age 62 for early retirement and age 65 for unreduced Social Security retirement.

CP, who retires at age 64 at that salary level with 30 years of service, does not get the supplement and files an age discrimination charge.

Employer P has not violated the ADEA. As a result, the total annual retirement benefit received by each similarly situated retiree is the same; only the source of the benefit entirely from the employer for the younger workers and from both the employer and the government for the older workers is different.

The employer may choose whether to terminate the supplement at age 62 or age In the example above, Employer P could have offered to pay employees a Social Security supplement until they reached the age of EXAMPLE - Employer A offers to pay Social Security supplements as an early retirement incentive for its employees between the ages of 55 and The amount to which each individual employee will be entitled in Social Security supplements will depend on that individual's work history.

Because of the ADEA's focus on the rights of individuals, and because this defense will be satisfied only if older retirees receive no less in total benefits than similarly situated younger employees, the calculation must focus on each younger employee's own Social Security entitlement. It may not be based on an average calculated for a group of employees.

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EXAMPLE - Employer T, a private, fully accredited university, offers its tenured faculty members an early retirement incentive. Those who retire at age 65 or above are not eligible for any ERI benefits. Employer T does not argue that these benefits are justified either as amounts necessary to bring eligible employees up to the level of an unreduced pension, or as Social Security supplements. Employer T has not violated the ADEA.

Under recent amendments to the law, an institution of higher education may make age-based reductions in ERI benefits offered to its tenured faculty without demonstrating that it meets one of the other tests set forth in this section.

If Employer T makes age-based reductions in its ERI, it cannot require its faculty to make this choice. EXAMPLE - In January ofEmployer T eliminates the health benefits that it had previously made available to retirees. In June ofEmployer T offers a new ERI under which tenured faculty who retire between the ages of 55 and 64 are provided their prior retiree health benefits. Because it simply repackages benefits previously available to these employees, Employer T's ERI is not protected by this exemption.

It will be valid only if Employer T can show that it satisfies one of the other defenses to age-based ERIs. CP, a 64 year old tenured faculty member with the required years of service, alleges age discrimination.

CP must be given the opportunity to take early retirement despite his age. CP must be given at least days to choose to retire and a further days after the election actually to retire. Under this exemption, employers may structure their ERIs to give all employees above a certain age:.

Because these types of ERIs treat employees evenhandedly without regard to age, they are consistent with the relevant purpose or purposes of the ADEA. Where, on the other hand, an ERI otherwise reduces or terminates benefits to older workers based on their age, it will not fall within this exemption.

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This is true whether an employer reduces ERI benefits, based upon age, to those who are eligible for the ERI e. EXAMPLE - Employer G establishes an ERI, but offers it only to those who are between the ages of 58 and Those who retire early receive monthly payments until they turn As a result, employees who retire at age 58 receive forty-eight months of benefits under the plan; those who retire between the ages of 59 and 61 receive the same monthly payments, but fewer of them; and those who retire at age 62 or older receive no ERI benefits at all.

Employer G offers no evidence that this payment schedule is justified either as the subsidized portion of an early retirement benefit or as a Social Security supplement. This plan is not consistent with the purposes of the ADEA.

EXAMPLE - Under Employer H's ERI, employees are eligible for ERI benefits, but only if they have at least 10 years of service and retire within the year after they turn Because eligibility for benefits is keyed in part to an employee's age, this ERI is not consistent with the purposes of the ADEA.

In each of these cases, the employer has engaged in arbitrary age discrimination. First, each of these plans operates on the stereotype that individuals will customarily retire at a certain age - and thus that only retirement before that age can be considered "early.

The language, the structure, and the legislative history of the ADEA confirm this understanding. First, it is clear that Congress does not believe that the ADEA generally authorizes age-based reductions in, or cutoffs of, early retirement incentives; it was for this reason that Congress was forced to enact a specific exemption when it wanted to authorize institutions of higher education to offer age-based early retirement benefits to tenured faculty.

In addition, the structure of the ADEA makes clear that employers who provide lower benefits for older workers must typically demonstrate one of two things: either that a the employer has incurred equal cost for the benefits for older and younger employees, or that b accounting for benefits from other sources, the older workers get at least the same total benefit as similarly situated younger employees.

These exceptions were carefully crafted to eliminate arbitrary age discrimination while recognizing that the age of an employee can affect the costs of benefits to, and employment opportunities available for, that employee, as well as the availability of government-provided benefits for that individual.

The exceptions thus meet the relevant purposes of the ADEA - as do the exceptions for ERIs that provide the subsidized portion of an early retirement benefit or that are Social Security supplement plans. Reducing or denying ERI benefits based arbitrarily on an employee's age does not meet this test. Finally, Congress stated explicitly that "it would be unlawful. to exclude older workers from an early retirement incentive plan based on stereotypical assumptions that 'older workers would be retiring anyway'.

Such ERIs are unlawful and cannot be justified by reference to this exemption. An employer may not discriminate against a qualified individual with a disability, on the basis of disability, with respect to fringe benefits. If a charge alleges that the terms of an employee benefit plan discriminate on the basis of disability, the first question is whether the employer has provided benefits to a qualified employee with a disability that are equal to the benefits provided to employees generally under the plan.

Benefits will be equal only if all employees participating in the plan, regardless of disability, receive the same types of benefits, the same payment options, and the same amounts of coverage - for the same cost. If the employer has provided equal benefits, there is no ADA violation. If, on the other hand, the employer has provided benefits to a qualified employee with a disability that are unequal to the benefits provided to other employees, the next question is whether the difference is based on the employee's disability.

If the difference in the benefits is not a result of a disability-based distinction, and if the challenged provision is applied equally to all employees participating in the plan, then there is no violation of the law.

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If the unequal benefits provided to a qualified employee with a disability are based on disability, the benefit plan will be unlawful unless the employer can show that the disability-based distinction is not a "subterfuge" to evade the purposes of the ADA. There are several ways an employer can make this showing. See Section IV, infra. Thus, if the charge challenges discrimination in the terms or provisions of a benefit plan, the relevant questions are the following:.

For benefits to be equal, the same coverage must be provided, on the same terms, to all similarly situated employees. For example, benefit plans must be the same with regard to:.

These benefits are not equal. People with mental disorders have not received equal benefits.

Not all provisions of an employer's benefit plan that are related to health, and that result in unequal benefits for individuals with disabilities, are based on disability.

A health-related distinction that is not disability-based, and that is applied equally to all employees, does not violate the ADA. Therefore, the next question is whether any difference in benefits arises from a disability-based distinction. EXAMPLE - Singles out a particular disability. Employer Z's disability retirement plan covers all physical and mental disorders except major depression. EXAMPLE - Singles out a discrete group of disabilities. Employer Z's health insurance plan caps coverage for treatment of cancers at one million dollars but caps coverage for the treatment of all other physical conditions at 20 million dollars.

EXAMPLE - Singles out disability in general. Employer Z requires employees who are no longer able to work because of a physical or mental disorder to retire on disability retirement, even if they also are eligible to retire under the employer's service retirement plan.

EXAMPLE - Employer U's health insurance plan treats workers' compensation as primary, and provides only secondary coverage, for conditions which are attributable to occupational injury or illness.

Because many different types of impairments may result from occupational injury or illness, and because the limit on coverage affects employees with and without disabilities, this is not a disability-based distinction. EXAMPLE - Employer U's long-term disability plan has a 6-month waiting period for all pre-existing conditions.

This is not a disability-based distinction. EXAMPLE - Employer U's health insurance plan covers only two Electronic Resonance Imaging ERI scans per year per patient. Because ERI scans are used for all kinds of conditions and because the limitation affects both individuals with and individuals without disabilities, this provision is not based on disability.

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The Commission has also taken the position that it is not necessarily a disability-based distinction if an employer's health insurance plan provides unequal benefits for mental conditions compared to physical conditions. Such distinctions in health insurance plans thus will not generally violate the ADA. If an employer has made a disability-based distinction in a benefit plan, it will be liable for a violation of the ADA unless it can show that the distinction is justified.

The ADA sets forth two elements to the defense. An employer must demonstrate that:. Under the first prong of the defense, an employer must demonstrate that its plan is either a bona fide insured plan that is not inconsistent with state law, or a bona fide self-insured plan. The term "subterfuge" refers to disability-based disparate treatment in an employee benefit plan that is not justified by the risks or costs associated with the disability - that is, to disability-based distinctions that are not "based on sound actuarial principles or related to actual or reasonably anticipated experience.

There are several ways that an employer can prove that a disability-based distinction in a benefit plan is not a subterfuge.

Among possible justifications are the following. EXAMPLE - CP alleges that Employer N has refused to cover treatment for her diabetes, despite the fact that it has covered a coworker's costs for treatment of her rheumatoid arthritis. Employer N shows that it refused to cover CP's diabetes because the condition predated her enrollment in the insurance plan, and further that it treats all pre-existing conditions similarly.

Actuarial data will measure both the likelihood that the employer will incur insurance costs related to the disability and the magnitude of those costs as they arise. Thus, employers must show that the reduction in coverage for the disability or disabilities is required to account for an increased possibility that the benefit will be claimed or that the amounts required for coverage will be higher.

Employers may not, however, rely on actuarial data that is outdated or that is based on myths, fears, stereotypes, or assumptions about the disability at issue. Even where employers can produce actuarial data that demonstrates that the risks and costs of treatment of a condition justify differential treatment of it, employers must also show that they have treated other conditions that pose the same risks and costs the same way.

If there is evidence that an employer has treated other conditions differently from the disability at issue, the employer has discriminated by singling out a particular disability for disadvantageous treatment.

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Investigators should find cause. For a disability-based distinction to be a subterfuge, it is not necessary that it have been adopted a after enactment of the ADA; or b with the intent to discriminate in hiring, promotion, termination, or other non-benefit employment decisions.

As a result, it is not necessary to prove that discrimination in fringe benefits was intended as a means to discriminate in other employment decisions. In addition, it does not violate the ADA for an employer to offer only a service retirement - but not a disability retirement - plan. Where an employer establishes either or both types of plans, however, it may not discriminate against employees with disabilities.

EXAMPLE - Employer F requires employees covered by the ADA who qualify for both service and disability retirement plans to take the disability retirement benefit. This violates the ADA. EXAMPLE - Employer F requires that employees with disabilities complete 12 years of service before being allowed to enroll in its service retirement plan; the employer permits employees without disabilities to enroll in the service retirement plan after 10 years of service.

This is discriminatory.

EXAMPLE - In its service retirement plan, Employer G gives cost-of-living increases to employees without disabilities every three years, but gives such increases to employees with disabilities only every five years. This discriminates against individuals with a particular disability and is unlawful. However, the ADA does not require that service retirement and disability retirement plans provide the same level of benefits, because they are two separate benefits which serve two different purposes.

As long as all employees may participate in the service retirement plan on the same terms, regardless of the existence of a disability, an employer will not violate the ADA if it provides lower levels of benefits in its disability than in its service retirement plans.

This does not violate the ADA, as long as employees who are eligible for both have the right to choose between disability and service retirement programs. EXAMPLE - Under Employer Q's service retirement plan, retirees receive periodic increases e.

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Under the employer's disability retirement plan, disability retirees get fixed benefits. This is not unlawful. In addition, it does not violate the ADA for an employer to deny service retirement benefits to those who have previously chosen voluntarily to take disability retirement benefits.

Investigators should find no cause if charges challenging such denials arise and the charging party voluntarily opted for disability retirement benefits. Under Title VII, employers may not consider a person's race, color, sex including pregnancynational origin, or religion in determining :.

employee benefits. The cost of the benefit is not a defense. Thus, for example, even if it costs an employer more to provide benefits to women as a class than to men, the employer may not either charge women more, or provide them lesser benefits, to make up the difference. Section II discusses specific issues that may arise in charges alleging benefits discrimination on any basis prohibited under Title VII.

Section III addresses discrimination in benefits on the basis of pregnancy. Although women as a class generally live longer than men, Title VII requires that each woman - and each man - be treated as an individual.

As a result, employers may not use sex-based actuarial tables - which rely on generalizations about womens' and mens' life expectancies - to calculate either the amounts that the employer will pay in benefits to men and women or the amounts that it will charge its male and female employees for those benefits.

Where a portion of a retiree's pension benefits derives from contributions made prior to August 1,there may be limitations on the relief that can be given even if sex-based actuarial tables were used with regard to those contributions. If a charge involves benefits based on contributions made prior to this date, contact the Office of Legal Counsel.

Like retirement benefits, health insurance benefits must be provided without regard to the race, color, sex, national origin, or religion of the insured.

An employer must non-discriminatorily provide to all similarly situated employees the same opportunity to enroll in any health plans it offers. An employer must also ensure that the terms of its health benefits are non-discriminatory.

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In evaluating charges that an employer has discriminated in the terms of health benefits it offers, the following principles apply:. Where both men and women are, or could be, affected by the same condition or helped by the same treatment, the employer will be liable for sex discrimination if it provides different coverage to employees of each gender on the basis of gender.

EXAMPLE - Employer H's health plan covers treatment of heart attacks. Citing statistics that show that men suffer heart attacks more frequently, and at earlier ages, than women, Employer H treats coverage of heart conditions as a supplemental benefit for which men, but not women, will have to pay an additional premium. This is facial discrimination against men.

It is no defense that coverage for heart conditions may cost Employer H more for men than for women. As the Supreme Court held in Griggs v.

Duke Power CompanyTitle VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. Where an employer uses a facially neutral standard to deny insurance coverage for a condition or treatment that disproportionately affects members of a protected group, the employer's standard will create a disparate impact.

EXAMPLE - Employer H's health plan excludes "experime ntal treatments. Because breast cancer affects only women in the vast majority of cases, Employer H's policy has resulted in a disparate impact on the basis of sex. Employer H must justify the exclusion by showing that it is based on generally accepted medical criteria. The investigator should ask Employer H to explain the criteria it uses to determine whether a treatment is experimental and how it applied these criteria to justify the exclusion for bone marrow transplants for breast cancer.

The investigator should also ask Employer H for information regarding the scientific support for its criteria. If Employer H's criteria are not generally accepted in the medical community, Employer H's failure to cover the treatment is sex discrimination. EXAMPLE - Employer H makes coverage decisions based on its measurement of the "efficacy" of a particular treatment. In doing so, it applies a formula that relies on the percentage of cases in which the treatment has successfully cured or ameliorated the condition for which it is used.

Assuming that Employer H applies the same formula to treatments for all conditions, the Commission will not find a violation of Title VII if the formula is based on generally accepted medical criteria. The same standards apply where an employer covers the medical expenses of its employees' spouses and dependents. Such policies must offer equal coverage regardless of the gender of the employee.

If questions arise about whether an employer's criteria are based on generally accepted medical standards, contact the Office of Legal Counsel. Under the Pregnancy Discrimination Act PDAwomen who are affected by pregnancy, childbirth or related medical conditions must be treated the same as others who are similarly able or unable to work.

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Employers must allow women who are on pregnancy-related leaves to accrue seniority in the same way as those who are on leave for reasons unrelated to pregnancy. Thus, if an employer allows employees who take medical leave to retain their accumulated seniority and to accrue additional service credit during their leaves, the employer must accord the same treatment to women on pregnancy-related leaves.

Similarly, employers must treat pregnancy-related leaves the same as other medical leaves in calculating the years of service that will be credited in evaluating an employee's eligibility for a pension or for early retirement. These principles also apply to pregnancy-related leaves taken before the effective date of the PDA, where an employer uses years of service to establish eligibility for retirement benefits.

EXAMPLE - CP took maternity leave inbefore passage of the PDA. At the time, her employer's policy denied any accrual of service credit during maternity leaves, although it permitted employees on leave for other medical reasons to accrue service credit during their leaves. Although the employer changed its policy in to conform to the PDA and to treat maternity leave similarly to other medical leaves, it never gave CP credit for her pre-PDA leave.

InCP's employer implements an incentive program that authorizes employees with 25 or more years of service to take early retirement with full pensions. Because she took a maternity leave for which she accrued no years of service credit, CP falls short of the 25 year service requirement and files a charge challenging discrimination on the basis of pregnancy.

CP's claim is timely and states a violation of the PDA. In evaluating eligibility for early retirement inthe employer has distinguished between employees who took leave prior to due to a pregnancy-related disability and employees who took leave prior to for other temporary disabilities.

While the denial of service credit to women on maternity leave was not unlawful when CP took her leave inthe employer's decision to incorporate that denial of service credit in calculating seniority in is discriminatory. Health insurance plans offered in connection with employment must cover pregnancy, childbirth, and related medical conditions in the same way, and to the same extent, that they cover other medical conditions.

This means, in essence, two things:. To offer coverage of pregnancy, childbirth, and related medical conditions on the same terms as for other medical conditions, an employer's health plan must provide for, among other things:.

EXAMPLE - CP delivers her baby three weeks early while on an out-of-state business trip. Employer J denies coverage of CP's hospital charges because the delivery was not performed at a local hospital. Employer J has violated the PDA if it typically covers costs incurred at non-local hospitals when employees have medical emergencies away from home.

EXAMPLE - Employer Q denies coverage of any expenses related to CP's pregnancy on the ground that her date of conception predated her enrollment in the insurance plan.

If Employer Q excludes coverage for all conditions that commenced before an individual's date of coverage by the plan, this will not violate the PDA. EXAMPLE - Employer U's policy states that it will not cover routine sonograms during the course of a pregnancy. The investigator should determine how Employer U handles claims for other routine diagnostic procedures.

If, for example, Employer U does cover the cost of routine dental X-rays or PAP smears, it must cover sonograms to a comparable extent. This Section addresses discrimination in life and health insurance benefits; long-term and short-term disability benefits; severance benefits; pension or other retirement benefits; and early retirement incentives.

Under the ADEA, the ADA, and Title VII, charges involving these types of benefits may raise unique issues that require special analysis. This Section discusses that analysis in detail. At bottom, however, the fundamental principle of the anti-discrimination laws applies in this context as in all others: if an employer provides a lower level of benefits to an individual based on a prohibited factor, it must make out a defense.

If it cannot do so, its conduct will be unlawful, and cause should be found. Actuarial assumptions are reasonable predictions about variables such as interest rates, life expectancy, and expected salaries. They are used in calculating the benefits that can be expected to accrue over time and in estimating the cost of those benefits.

See examples under " present value " and " early retirement: actuarial reductions " for further discussion. EXAMPLE - In setting premium rates for life insurance coverage, an insurer will collect data on millions of individuals, developing a chart that will predict how long the average individual of a particular age will live.

These "life expectancy" data permit actuaries to calculate the amount of premiums that would be necessary to cover predicted insurance payout. This schedule of premiums will also show the amount of coverage that can be offered at those prices. EXAMPLE - In setting premiums for long-term disability coverage, an insurer will evaluate the likelihood that employees in the employer's work force will be injured. To make this determination, the insurer will consider factors such as past occurrences; type of industry e.

EXAMPLE - By collecting a large amount of data on lifespans of individuals, an actuary can demonstrate that of persons retiring at age 65, some will live only a few days, while others will live beyond the age of If the actuary determines that individuals retiring at 65 will live an average of 16 years, an insurer can project the average cost of providing retiree health insurance for that period of time.

Present value is the value today of one or more payments to be made in the future - that is, the amount of cash an employer would need to invest today in order to make all of the promised future payments and end up with no money left. Present value takes into account the fact that the future payments will be made from both principal and interest. Defined benefit pension plans use a formula to promise a specified benefit upon retirement, regardless of the gains or losses on plan investments.

Eligibility for payment of benefits typically depends on reaching normal retirement age with a specified number of years of service. The benefits available when an employee retires are based upon the earnings of the employee's account. A k plan is a type of defined contribution plan. The accrued benefit in a defined benefit plan is defined by Internal Revenue Service regulations as an annuity at normal retirement age.

In a defined contribution plan, the accrued benefit is the amount that has accumulated in the employee's account as a result of the periodic credits defined in the plan. Normal retirement age is the age at which an employee is eligible to retire immediately with unreduced benefits.

The most common normal retirement age is age A plan cannot require employees to retire at normal retirement age. Some defined benefit pension plans permit employees to retire before normal retirement age. Usually, these plans provide reduced benefits, based on the fact that benefits to younger retirees are likely to be paid out over a longer period of time. No pension plan is required to permit early retirement.

In some cases, employers offer enhanced retirement benefits to workers to induce them to retire earlier than they had otherwise planned. Years of service are the years an employee has worked for an employer; years of participation are the years an employee has participated in a pension plan.

Because absent discrimination on a prohibited basis the Employee Retirement Income Security Act ERISA and the Internal Revenue Code Code permit employers to exclude employees from a pension plan in some circumstances, years of service may differ from the years of participation that are counted under some plans. Vested benefits are pension benefits that cannot be forfeited by an employee. Under ERISA and the Code, an employer can require an employee to work for a specified number of years generally five to seven years before becoming fully entitled to the pension benefit.

Vesting is different from eligibility. The vested benefit is thus "deferred. An employee who has satisfied all of the requirements for receipt of a pension generally, the employee has reached normal or early retirement age and attained a minimum number of years of service is eligible for an "immediate" pension.

Usually, pension plans require that employees retire before the pension can be paid. A pension is "unreduced" if individuals can obtain the full amount to which they would be entitled after reaching normal retirement age and attaining the requisite number of years of service.

If plans authorize employees to retire earlier than normal retirement age, they typically reduce the benefit actuarially, taking into account the fact that relatively younger workers are expected to receive benefits for a longer period of time. Unreduced benefits are those that would be paid absent those actuarial reductions. Many plans that permit employees to retire earlier than normal retirement age reduce the amount of the pension provided upon early retirement, to take into account the fact that the life expectancy of the younger retiree is greater than that of the older retiree.

EXAMPLE - A person retiring at age 65 has a life expectancy of approximately 16 years. To avoid prohibitive costs for early retirement, an employer will often reduce the amount of the annual pension payment for those who retire at 55 in order to ensure that the present value of the retirement benefit is the same for all employees.

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The ADEA does not prohibit this reduction in pension benefits for early retirement. Pension plans typically require that an employee retire, that is, cease working for the company, before being eligible for the receipt of pension benefits.

In some cases, however, plans will require the payment of pension benefits while persons are still employed. In addition, the Internal Revenue Code requires that some employees who continue working beyond the age of 70 be paid their benefits prior to retirement. In-service pension payments may not, however, be used to force an employee to retire.

Pension plans provide a variety of optional forms of payment upon retirement. Among the more popular are:. To investigate challenges to pension plans or early retirement incentive programs, investigators should typically obtain the following, as well as other documents relevant to the facts of a particular charge:.

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To investigate charges that allege age discrimination in life insurance, health insurance, or disability plans, investigators should obtain the following:.

The Pension and Welfare Benefits Administration of the Department of Labor DOL enforces the provisions of the Employee Retirement Income Security Act ERISA that deal with the operation of pension plans, the preservation of plan assets, and the proper disposition of plan assets.

DOL ascertains that employers are investing and safeguarding plan assets for the benefit of the employees, not the employer. The Employee Plans Division of the Internal Revenue Service enforces the tax cts of employee benefit plans, with special emphasis on the legality of pension plans. To encourage employers and employees to save actively to pay for the employees' retirement, employers that maintain pension plans are permitted favorable tax treatment for their contributions to the plans, including tax deductions and delayed taxation for plan earnings.

The Internal Revenue Code sets out detailed rules for determining whether or not a pension plan qualifies for favorable tax treatment. PBGC provides insurance to guarantee the pensions of plan participants in the event that plan assets are inadequate to cover employees' pensions. The requirements and prohibitions set forth in this Chapter apply to employers, employment agencies, labor organizations, and joint labor-management committees.

For convenience, the term "employer" is used throughout this Chapter to refer to all covered entities.

See, e. Norris, U. violates Title VII regardless of whether third parties are also involved in the discrimination". ERISA ; 26 U. Internal Revenue Code. Regulations implementing the Internal Revenue Code may be relevant to a charge in the limited context of pension accruals and allocations. If an employer alleges that ERISA or the Internal Revenue Code provides a defense to the provision of unequal benefits in this or other contexts, contact the Office of Legal Counsel for further guidance.

If an employer's benefit plan is facially discriminatory, there is no need to amass additional evidence of the employer's intent to discriminate. Gary Community School Corp. Board of Education82 FEP Casesn. International Union, UAW v. Johnson ControlsInc. California Public Employees Retirement Syst. granted, judgment vacated on other groundsS. The Commission believes that Arnett misreads fundamental principles of disparate treatment analysis to the extent that it suggests that proof of discriminatory motive is necessary where a benefit plan is facially discriminatory.

Board of EducationF. UARCOF. In some cases, it may be appropriate to assess whether the benefit plan discriminates against a larger class of older employees.

In such cases, investigators may need to gather additional information about the benefits the employer pays, or would pay, to employees at a range of ages, salaries, and years of service. Investigators may contact the Commission's Office of Research, Information and Planning ORIP or the Research and Analytic Services Staff of the Office of General Counsel for additional guidance on the information to seek and the calculations to be performed.

If questions arise about application of the equal cost defense to other benefits, contact the Office of Legal Counsel. The equal cost defense is codified at 29 U.

The Commission's regulations on the requirements of the defense, which were codified by Congress and are described in this section, can be found at 29 C. A copy of the regulations is attached as Appendix D. The principles set forth in sections 3 and 4 above apply equally to "cafeteria" plans. Under the equal cost defense, an employer would have to demonstrate that it had made the same amount of money available to its older and younger employees.

The employer would also be required to prove that any reduction in the benefits that older workers could purchase for that amount was actuarially justified, under either a benefit-by-benefit or a benefit package analysis.

Employers may also deduct non-age-based benefits - such as workers' compensation payments - from benefits they provide, as long as the deductions are made uniformly for all employees. If employers assert that they may make age-based offsets other than those discussed in this Chapter, contact the Office of Legal Counsel.

See 42 U. Occasionally, an employer might reduce benefits to older workers who are under the age of 65, and then raise those benefits once the workers turn 65 in order to comply with Medicare requirements.

An employer might, for example, decrease benefits for employees between the ages of 56 and 64 and then restore the benefits for 65 year olds to the level received by 55 year old employees. Although such actions may not violate the Medicare laws, they would violate the ADEA unless the employer could satisfy the equal cost defense as to the benefit reductions imposed on employees between the ages of 56 and An employer is not required to offer health benefits to retirees; in addition, such benefits, if offered, need not be as generous as the health benefits provided to current employees.

This section addresses the situation in which older retirees receive lower benefits than similarly situated younger retirees on the basis of age. The numbers used in this example are illustrative only and do not necessarily reflect the actual benefits paid by Medicare. Because the law does not itself permit employers to reduce or eliminate health benefits provided to retirees simply because those retirees are eligible for Medicare, the Commission is not persuaded by legislative history to the contrary.

Final Substitute: Statement of Managers, Cong. S Sept. First, the legislative history contains conflicting statements on this question. See S. Where a law is not ambiguous on its face, moreover, resort to legislative history - which simply states the views of legislators who may or may not have been able to enact their interpretations into law - is unnecessary. RadloffU. BergeronU. See EEOC v. City of Mt. LebanonF.

City of MilwaukeeF. The schedule set forth in the example in text was discussed in the preamble to the regulations originally drafted by the Department of Labor to implement the benefit provisions of the ADEA. The preamble stated that plans adhering to this schedule would be lawful only if data to support the cost justification for the plan were available.

Pensions may be offset against disability benefits at the point at which an employee becomes eligible for an unreduced pension.

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See Kalvinskas v. California Institute of Technology96 F. This principle stems logically from the holding in Kalvinskas. See Arnett v. Lyon v. Ohio Education Assn53 F. Lyon did not address a disability retirement plan. The Commission in any event disagrees with the Lyon analysis. Where a benefit plan ties the amount of benefits provided to the number of years it will be before an employee reaches normal retirement age, it is explicitly age-based.

This is facial discrimination that does not require additional proof of intent. Westinghouse Elec. Borden'sInc. Congress cited both of these cases with approval. H Oct. An employer may assert that the cost of severance benefits increases with an employee's years of service, and that increases in years of service are correlated with increases in age. Even if an employer's costs increase based on a factor correlated with age, however, the Supreme Court has made clear that this is insufficient to show that the cost increases are in fact age- based.

Hazen Paper Co. Biggins, U. Thus, an employer cannot assert that severance benefits entail age-related cost increases that trigger application of the equal cost defense. These valuations were to be adjusted annually on the basis of the medical component of the Consumer Price Index. If an employer is using valuations other than those set out in the ADEA, therefore, the investigator should ask for the Consumer Price Index data upon which the employer is relying.

If questions about valuation arise, contact the Office of Legal Counsel. Westinghouse Savannah River Co. That principle has been recognized where pension payments are offset from long-term disability benefits, see Kalvinskas v.

An employer that violates the principles governing severance offsets will be liable for a violation of the ADEA and for all applicable ADEA remedies. Congress has also explicitly recognized that an individual may sue an employer that takes an offset based on a promise to provide retiree health benefits, and then fails to provide such benefits, for specific performance - that is, for the actual benefits the individual has been denied.

See 29 U. See Quinones v. City of Evanston, 58 F. Section For employees hired within five years of the plan's normal retirement age, the employer may not require more than five years of service before those individuals are eligible to participate in the pension plan.

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An employer may assert that these prohibitions do not apply to pension benefits paid to highly compensated employees, or alternatively that its treatment of older employees is governed by regulations governing pension accruals and allocations under the Internal Revenue Code. If an employer makes either of these assertions, contact the Office of Legal Counsel for further guidance.

See Pub. at "the requirements contained in [the ADEA section addressing pensions] related to an employee's right to benefit accruals with respect to an employee benefit plan. shall constitute the entire extent to which ADEA affects such benefit accrual and contribution matters If questions arise about how to compute the actuarial value of pension payments, contact the Office of Legal Counsel.

An employer may not, however, stop pension accruals or contributions because an employee is eligible for Social Security benefits. Auerbach v. The employee has the burden of proving that an ERI is not voluntary. Employers must also meet various other criteria for a waiver to be valid. For cases addressing voluntariness, see, e. This will not violate the ADEA, as long as the older workers eligible for the ERI receive at least the same total pension amount as similarly situated younger employees.

Employers eligible for this exemption may also attempt to justify any age-based reductions in ERI benefits under one of the other rationales set forth in this section. See Final Substitute: Statement of Managers, Cong. The prohibition on arbitrary age discrimination is the purpose generally implicated when considering ERIs.

Solon v. Board of Education82 FEP Cases E. Crown Point Community School Corp. City Colleges of ChicagoF. plan that sharply decreased ERI benefits at age 65 was intended to induce employees to retire by that age and thus violated the ADEAcert. denie U. Indeed, in enacting this exemption, Congress stated explicitly that nothing in the exemption was intended to affect application of the ADEA to any other type of plan or to any employer other than an institution of higher education.

Thus, Congress clearly intended to limit the use of age-capped plans to these employers alone.

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For these reasons, the Commission disagrees with Auerbach v. Because, moreover, the challenged conduct in each of these cases occurred before Congress enacted the amendments permitting age-capped benefits for tenured faculty - and making clear that authorization for age-capped benefits is limited to this context - it is unclear that the courts in each case would reach the same result today.

H October 2, statement of Congressman Goodling, minority floor manager of the bill "[t]he bill would not permit employers to use window plans targeted at a select group of employees with an upper age bracket-that is, those aged 55 to 60" ; id. at H, statements of Congressmen Clay and Roybal. Other parts of the legislative history, as well as the Final Substitute: Statement of Managers, contain some conflicting language on this question.

would be lawful". To the extent that this language does anything more than authorize employers to set a minimum age for eligibility for ERI benefits, the Commission believes that it is inconsistent with the language and purposes of the ADEA. The fact that individuals with particular disabilities have not received equal benefits does not necessarily mean that the plan violates the ADA.

An investigator must still determine whether the distinction drawn by the plan is disability-based. In the context of health insurance, for example, differences in the coverage of expenses for mental and physical conditions are not disability-based distinctions.

See p. Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of to Disability-Based Distinctions in Employer Provided Health InsuranceNo.

Mental conditions are "impairments" only if they are based on a mental or psychological "disorder. The Commission has taken the position in litigation, on the other hand, that distinctions between mental and physical conditions in long-term disability LTD plans are disability-based. This means that in most instances employees who are eligible for or are receiving LTD benefits have disabilities as defined by the ADA, because their impairments substantially limit their ability to work or to engage in one or more other major life activities.

Courts have disagreed with the Commission's position and have held that treating physical and mental conditions differently in an LTD plan does not violate the ADA. Staten Island Savings BankF. Kmart Corp. denie 68 U. Schering-Plough Corp. denie S. An "insured" benefit plan is a plan that is purchased from an insurance company or other entity. In a "self-insured" plan, the employer directly assumes the liability of an insurer.

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Insured benefit plans are regulated by both ERISA and state law. Self-insured benefit plans are typically subject to ERISA, but are not subject to state laws that regulate insurance.

If questions arise concerning whether a bona fide insured plan is consistent with state law, contact the Regional Attorney. This showing was required under a prior version of the ADEA in order to prove that an age-based distinction in benefits was a subterfuge to evade the purposes of that law. See Ohio Public Employees Retirement Syst. BettsU. Congress legislatively superseded Betts by enacting amendments to the ADEA in the Older Workers Benefit Protection Act ofcodified at 29 U.

See H. at ; S. Courts are split on the issue of whether the Betts analysis applies to disability-based distinctions in fringe benefits. Compare, e.

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Prudential Ins. of Am. The Commission disagrees with cases applying the Betts analysis because the ADA makes clear that discrimination in fringe benefits is covered, regardless of the date of adoption of the plan, and is unlawful absent an actuarial justification for disability-based distinctions in coverage.

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