Saturday, May 9, 2009
Of Age Discrimination and ASUN
Previously we blogged about the illegal acts committed by the ASUN Senate when it used age as a factor in determining whether Erin Gelmstedt should be appointed to the vacant Liberal Arts seat. One commenter noted that provisions of the Age Discrimination in Employment Act of 1967 might exempt the Senate from the prohibitions set out in that act.
Well, as it turns out, laws can be pretty complicated, and, given the whole of our research, we stand by our original claim that, from the information available to us, the Senate likely engaged in illegal age discrimination. For the reasons we'll set out below, we'll show that the commenter is wrong, but not for the reason of his comment.
The Age Discrimination in Employment Act of 1967, which is codified at chapter 14 of Title 29, United States Code (sections 621 et seq.) (references to section numbers are to the codification in the USC The chief prohibition of the act is carried in section 623 of the Act, which reads(a) Employer practices
Pretty simple, right? Employers cannot use age as a reason for failing or refusing to hire someone. Well, there's more to it than that. Section 631 sets age limits for which the Act applies.
It shall be unlawful for an employer--
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age(a) Individuals at least 40 years of age
Well damn. By the Act's provisions, it does not apply to what ASUN did, because for as old as Ms. Gelmstedt is (that's a joke, btw), she's still a long ways from ancient (i.e. 40).
The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.
Well bummer. Because the Act does not apply, I need not point out the flaws with our commenter's remark that section 630, the definitions that apply to the Act, makes the Senate exempt.(f) The term "employee" means an individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policymaking level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office.
I initially commented back that this definition probably does not apply to the Senate and would require further analysis in a separate post. This post isn't that post.
But the age discrimination question still isn't settled. See, federal law is pretty big, and there's another law relating to age discrimination that might apply. It's called the Age Discrimination Act of 1975.
That Act, which is codified at 42 USC 6101 et seq., states, in section 6102, "no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance. "
The definitions of that Act, set out in section 6107, go on to say that(4) the term "program or activity" means all of the operations of--
That means that if any part of the University of Nevada, Reno, receives federal financial assistance, the Age Discrimination Act of 1975 applies to all of its programs and activities. I can tell you right now that Nevada receives federal financial assistance. Because of that, it is illegal for the Senate to discriminate based on age.
...
(B)(i) a college, university, or other postsecondary
institution, or a public system of higher education...
...
any part of which is extended Federal financial assistance.
But, there's one question left unanswered: Is ASUN part of the University? The answer is yes. The only reason ASUN gets to exist is because the Board of Regents allows ASUN to exist, and therefore is part of the University. And if ASUN is a part of the University, the Act's prohibitions apply to it.
The Age Discrimination Act of 1975 does not include the same definitional exclusion that the Age Discrimination in Employment Act of 1967 does regarding employees elected to public office of a state or political subdivision thereof. Therefore, that language does not apply under the Act that does apply to Ms. Gelmstedt's situation.
The bottom line is the Senate cannot discriminate based on age, and that is why we stand by our original comment.
PS. To "death on a triscuit": "Maybe not all the research was done before hand this time..." Right back at you, buddy.
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I don't think it's criminal law but civil. You couldn't arrest them but maybe sue for half a million.
ReplyDeleteIf we had a dictator, throwing them all in prison would be a quicker solution.
ReplyDeleteI highly doubt that you could get $500,000 from the University on this issue. Even if you could prove that the Senate discriminated against her, and that the advisors had a duty to stop it, it would be pretty hard to convince the federal courts and a jury that 21 college kids knew the law, understood it, and were actually discriminating instead of just saying that she wasn't qualified. The major problem with discrimination cases is proving that she was the most qualified candidate and that without any knowledge of her age, they would have and should have picked her.
ReplyDeleteIgnorance of the law isn't a defense, and it isn't an excuse, but when it comes to discrimination, the burden of proof is pretty high for the plaintiff.
If nothing else this experience has proven that the advisors are not doing their job, and that the Senators need to be more aware of the consequences of their actions. I would join Lupus and Corinna in my hope that Erin will try for another position within ASUN. The organization always needs dedicated people, usually to make up for the ones who are just there for their resumes.
This comment has been removed by the author.
ReplyDeleteNothing in this chapter shall be construed to amend or modify the Age Discrimination in Employment Act of 1967(29 U.S.C. §§ 621-634) as amended, or to affect the rights of responsibilities of any person or party pursuant to such Act. LinkThis suggests the law was not intended to modify or overwrite the protections granted a public body.
ReplyDeleteNothing in this chapter shall be construed to amend or modify the Age Discrimination in Employment Act of 1967(29 U.S.C. §§ 621-634) as amended, or to affect the rights of responsibilities of any person or party pursuant to such Act. LinkThis suggests the law was not intended to modify or overwrite the protections granted a public body.
ReplyDeleteBut they didn't know choose her because of her age.
ReplyDeletethis is a huge joke now. If you want to take action take action, if not...blow it our your a**. This is just stupid now.
ReplyDeletefactors that correlate with age, but are not directly dependent on age, do no prove age sicrimination without more.
ReplyDeleteProving Age Discrimination:
Age-Based Statements
Who made statement?
Decisionmaker?
Someone with influence over decisionmaker?
In what context?
When? Close in time to adverse action?
How often were such statements made? Does it reveal an ageist work environment?
Beware categorizing statements as “stray remarks.”
I don't know about $500,000, but I'll take free tuition. Both undergraduate and graduate.
ReplyDeleteNot in actual damages, which is only worth your lost stipend, but in punitive and compensatory damages. If you actually have a case, the university would settle to save it the cost of a trial.
ReplyDeleteThere is no way in hell the University would settle on a case like that. It would set a huge precedent that the University is accountable for the actions of a student government. They would drag it out forever just because they can. They went all the way to judgment on the soccer coach case and won.
ReplyDeleteAnonymous wrote:
ReplyDelete"This suggests the law was not intended to modify or overwrite the protections granted a public body."
True, so perhaps it is still worthwhile to explore why ASUN would not be considered to be a public body under the age discrimination acts.