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
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

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.

(a) Individuals at least 40 years of age
The prohibitions in this chapter shall be limited to individuals who are 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).

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--
...
(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.

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.

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.

UPDATED: Where's Waldo???

UPDATED: 10:25AM 5/7/2009

According to sources at the meeting, Yvonne Peña and Sandy Rodriguez were at the meeting (splitting the shift) and watched as Senators asked questions regarding the age of the applicants.  I'm not sure what's worse, not going to the meetings, or going and sitting idly by as people who you are responsible for break the law.  It's not like they aren't aware of this provision in FEDERAL law, they've given notice to past Senates, Publications boards, and other student bodies, that it is ILLEGAL to ask someone their age during a job interview.  I would think Sandy would have learned her lesson about breaking FEDERAL LAW when she disclosed student SOCIAL SECURITY NUMBERS in 2007.  

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Another Senate meeting, another no-show by Yvonne Peña. As a couple of commenters and contributors have pointed out recently, maybe the Senate wouldn't have so many problems if their advisors did their job.

For example, yesterday the Senate violated a number of fair employment, and equal access laws, on top of a number of University policies, and even ASUN laws, when they tried to rationalize not appointing an applicant based on age.

Newbies, that's discrimination. It's the same as if you said "she's a girl so we can't appoint her," or "his wheelchair might get in the way at the table," or any other type of discrimination. As one of our contributors points out in her analysis of groupthink, there are hundreds of students on campus who are over the age or 25. There are even people as old as 70 or 80 (omg) who go to classes. These people deserve representation, and you have no right to discriminate against candidates because "they're too old." Grow up.

But back to the subject at hand: if they had a proper and qualified advisor present, the arguably illegal acts might not have happened. In the past when the Senate started to consider illegal things, the advisor usually stood up and bitches at them. Yvonne, your job isn't to watch; your job is to ADVISE. In case no one has mentioned it, you're the Senate's advisor. Let me give you a definition of what an advisor is:

Advisor - noun

1. one who gives advice.

That means you're supposed to speak up. You shouldn't be leading the discussion, but you shouldn't just sit there looking stupid (there are 22 senators for that). We know you're not a lawyer (that's pretty obvious) nor qualified in governmental systems, but you should still know University policy and proper hiring practices. Selecting a new Senator is an EMPLOYMENT matter. That means it falls under labor law. That means they can't engage in prohibited discrimination.

My hope (maybe unfounded) is that over the summer Ms. Peña reads some books (I'm sure Lupus could recommend a few) and get to know the body that you're advising. We know you were thrown in the deep end last year. Tough shit. Get over it. You have three months over the summer break to get yourself aquatinted with the rules, laws, constitution, etc. When the Senate comes back from its summer recess, you need to bring your A game. As I'm sure Sandy has told you numerous times, this is a learning experience, FOR THEM, not you (well, for you, too, but mainly for them). You're supposed to be their teacher. You're supposed to GUIDE them, ADVISE them, HELP them, MOLD them (dare I say do what student development professionals are supposed to do and DEVELOP them). From what I can tell, all you did last session was sit on your ass and get paid. And look how that turned out.