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Single, in need of new experiences, waiting for you. Natural beauty living in PNW- no limits, no inhibitions! Trans MTF. Trans FTM. Couple male-female. Couple female. Couple male. Ethnicity Asian. 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. The offset can be taken only for additional pension benefits. Pension benefits that the employee had already accrued at the time of separation from employment may not be offset from severance payments.

See discussion above at Section IV E 1. The offset for additional pension benefits is different in two fundamental respects from the offset allowed for retiree health benefits:.

If the employer provides additional pension benefits that are enough, or are higher than those necessary to bring an employee up to the level of an unreduced pension, the employer can offset the full amount of those benefits. On the other hand, if the employer offers benefits that are insufficient to raise the employee to an unreduced pension, the employer cannot claim any offset at all.

Employer J is forced to close three of its facilities. See Appendix A, infra , for an explanation of "present value. EXAMPLE - Same facts as above, except that Employer J provides that its laid off employees who are between the ages of 60 and 64 and have worked for 20 years will receive pension benefits equivalent to those provided to 65 year old employees with the same years of service i. In such circumstances, Employer J cannot take an offset from severance at all , because these employees are not eligible for an immediate unreduced pension.

EXAMPLE - Employer C's defined benefit pension plan provides that employees are eligible for pension benefits when they reach the age of 55 and have at least 5 years of service. CP, who is 50 years old and has 10 years of service, files an age discrimination charge. Employer C need not pay benefits to an employee who has not reached the age of eligibility, regardless of that employee's years of service.

The investigator should again find no cause. Employer C's requirement that employees have worked for at least 5 years to be eligible for a pension does not disadvantage any person on the basis of age. All employees who are 55 and older are immediately eligible for pension benefits once they meet this requirement. This limitation is imposed without regard to the age of the employee, and does not violate the ADEA. EXAMPLE - Same facts as above, except that Employer C's plan also provides that -- for calculating the amount in pension benefits an employee will receive -- no employee can be credited for more than 30 years of service, no matter how many years that employee has worked.

Because this limitation is imposed without regard to age, it does not violate the ADEA. EXAMPLE - Employer D's pension plan has a normal retirement age of 55 but excludes those hired within five years of the plan's normal retirement age or beyond that age -- that is, those hired when they are 50 or above -- from participation in the plan.

CP, who was hired at age 51 and was denied the opportunity to participate in the plan, files an age discrimination charge. Because normal retirement age is, by definition, age-based, any exclusion of those who are five years away from normal retirement age is also age-based. Such an exclusion thus constitutes facial age discrimination.

EXAMPLE - Employer Q operates a defined benefit plan that sets a normal retirement age of 65 and pays benefits based upon the following formula: each year of employee service x 1.

The plan further provides that years of service will not be credited to any employee for years worked after normal retirement age. This is an age - based cap. CP begins working for Employer Q at the age of 35 and chooses to retire at the age of 70 after 35 years of service. However, Employer Q disregards the five years that CP worked after he turned 65, and calculates CP's benefit using only 30 years of service.

This plan is unlawful as it reduces the rate of contributions to employees' accounts because of age. Where pension accruals or contributions are conditioned on eligibility for a benefit that is itself tied to age, this will also violate the ADEA. However, Employer Q disregards any years of service rendered after an employee has attained eligibility for unreduced Social Security benefits.

Unreduced Social Security benefits are payable at age Thus, Employer Q's policy is based on age. The equal cost defense does not apply to violations of Section 4 i. In addition, an employer may not include pension plans in any benefit packaging it does under the equal cost rule.

In three cases, an employer may offset the amount of other benefits received by an employee from the accrual of or allocation to that employee's pension benefit. He decides to continue to work until age CP continues working until age CP's employer must pay to CP the amount he has earned in pension benefits up to age 65, but need not pay the additional accrual he has earned by working an extra year.

An employer may in some cases deduct Social Security Old Age benefits from the pension benefits it provides to an employee. If a charging party alleges that an employer has discriminated on the basis of age in making such deductions, contact the Office of Legal Counsel. In some cases, employers have converted their traditional defined benefit plans - plans that promise a specified benefit upon retirement, based on a formula derived by the employer - into "cash balance plans.

The pension paid to the employee is the total of the employer's contributions multiplied by the specified interest rate.

Charges have recently been filed challenging conversions from traditional defined benefit to cash balance plans.

The Commission is currently studying the allegations in these charges, and, as of the date of approval of this Chapter, has reached no conclusion as to the lawfulness of cash balance plans. Voluntary early retirement incentive plans ERIs have become a valuable tool in permitting employers and employees to work together in connection with corporate downsizings. 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.

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.

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. 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.