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Age, Sex and Disability Discrimination in Employee Benefit Plans (Portfolio 363)

Tax Management Portfolio, Age, Sex and Disability Discrimination in Employee Benefit Plans, No. 363-4th, analyzes the effect of age, sex and disability discrimination statutes on various types of employee benefit plans including pension plans, profit-sharing plans, health plans, and disability benefit plans.

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DESCRIPTION

Tax Management Portfolio, Age, Sex and Disability Discrimination in Employee Benefit Plans, No. 363-4th, analyzes the effect of age, sex and disability discrimination statutes on various types of employee benefit plans including pension plans, profit-sharing plans, health plans, and disability benefit plans. The Portfolio covers the Age Discrimination in Employment Act, various civil rights and labor statutes, as well as the Rehabilitation Act of 1973 and the Americans with Disabilities Act, and regulations and case law thereunder. It discusses the substantive requirements of these statutes, their relationship with ERISA and the tax laws that affect employee benefit plans, and the consequences of failure to abide by these rules.
The Worksheets include copies of guidelines and final rules issued by the EEOC, and sample notice and release forms as required by the Older Workers Benefit Protection Act.


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AUTHORS

WILLIAM J. FLANAGAN
William J. Flanagan (deceased), B.S.F.S. summa cum laude, Georgetown University (1974); J.D., Georgetown University Law Center (1977); Crowell & Moring, Washington, D.C.; Adjunct Professor of Law (Employee Benefits), Georgetown University Law Center.

TABLE OF CONTENTS

Detailed Analysis

I. General Overview

A. Scope of Analysis

B. ERISA Preemption Issue

II. Age Discrimination in Employee Benefit Plans

A. Statutes and Other Authorities

1. United States Constitution - The Fifth and Fourteenth Amendments

2. Civil Rights Acts

3. ERISA

4. ADEA

B. The Age Discrimination in Employment Act - A Detailed Analysis

1. The ADEA and Title VII

2. History of the ADEA Application to Employee Benefit Plans

a. The 1967 Act and Legislative History

b. The 1978 Amendments and Legislative History

c. ADEA Amendments in the Tax Acts, 1982–1986

d. Department of Labor Guidelines and EEOC Regulations

e. Congressional Response to the Betts Case - The Older Workers Benefit Protection Act

3. Coverage Under the ADEA

a. Covered Employer Under the ADEA

b. Covered Employees Under the ADEA

4. What the ADEA Requires

a. The General Prohibition Against Age Discrimination

b. The Specific Age Discrimination Prohibitions

(1) Prohibition Against Reducing the Wage Rate

(2) Prohibitions Against Ceasing Benefit Accruals or Allocations Due to Age

(3) Cash Balance Plans - A Special Situation

(4) Prohibition Against Involuntary Retirement

5. Challenging Age Discrimination in Employee Benefits

6. Statutory Defenses and Exceptions to the Age Discrimination Prohibitions

a. Section 4(f)(2) - The Employee Benefit Plan Defense

(1) Four Elements of the Employee Benefit Plan Defense

(a) Existence of a Bona Fide Employee Benefit Plan

(b) Observance of the Plan's Terms

(c) Equal Cost or Equal Benefit

(d) Statutory Exceptions to the Equal Benefit/Equal Cost Rules

(2) Early Retirement Incentive Plans - Special Considerations

b. Statutory Exceptions to the Mandatory Retirement Prohibition

(1) Executives and Policymakers

(a) Who Is Covered

(b) Required Minimum Retirement Benefit

(c) Effect of Exemption

(d) Coordination with ERISA

(e) Qualifying Plans

(2) Tenured Employees in Higher Education Institutions

(3) Firefighters and Law Enforcement Officials

c. Section 4(f)(1) - Bona Fide Occupational Qualification Defense

7. Valid Waivers of ADEA Rights

III. Sex Discrimination in Employee Benefit Plans

A. Governing Federal Authorities - Overview

1. U.S. Constitution

2. The Civil Rights Act of 1871

3. The Employee Retirement Income Security Act of 1974 (ERISA)

4. The Equal Pay Act and Title VII of the Civil Rights Act of 1964

a. The Equal Pay Act

b. Title VII

c. The Pregnancy Discrimination Act

5. Coverage Under the Equal Pay Act and Title VII

a. Employers

b. Unions

c. Employees

d. Sexual Orientation

B. Application of Title VII and the Equal Pay Act to Retirement Plans

1. Participation, Vesting and Retirement Age

2. Contributions

a. Employee Contributions

b. Employer Contributions

3. Benefits

4. Relief to Plaintiffs

a. Manhart and Norris Retroactivity

b. Equalizing Benefits

C. Application of Title VII and the Equal Pay Act to Welfare Plans

1. Pregnancy-Related Discrimination

a. Pregnancy Disability Benefits

b. Pregnancy-Related Leaves of Absence

2. Spousal Coverage Provisions

3. Contraceptive Coverage under Health and Prescription Plans

IV. Disability-Based Discrimination in Employee Benefit Plans

A. Historical Overview of Federal Disability Rights Legislation

B. The Rehabilitation Act of 1973

1. Rehabilitation Act § 501

2. Rehabilitation Act § 503

3. Rehabilitation Act § 504

C. Americans with Disabilities Act of 1990

1. Covered Employer

2. Covered Employee Under the ADA

3. Definition of Disability

a. Substantial Limitation of a Major Life Activity

b. An Otherwise “Qualified Individual”

c. The Direct Threat Exception

D. Impact of Disability-Based Discrimination Laws on Employee Benefit Plans

1. The Risk-Based Classification Exception and Prohibition Against Subterfuge

a. The Disability-Based Distinction Determination

b. Employer Burden of Proof - Bona Fide Plan

c. Employer Burden of Proof - No Subterfuge

2. Prohibition Against Indirect Discrimination

3. Voluntary Disclosure of Disability-Related Information in Certain Wellness Programs

4. Prohibition Against Discrimination in Dependent Coverage

5. Prohibition Against Hiring Decisions Based on Health Insurance Costs


WORKING PAPERS

Working Papers

Table of Worksheets

Worksheet 1 Sample OWBPA Notice and Waiver

Worksheet 2 29 CFR Part 1625 - Age Discrimination in Employment Act Regulations

Worksheet 3 29 CFR Part 1625 - Age Discrimination in Employment Act Regulations

Worksheet 4 29 CFR Part 1625 - Age Discrimination in Employment Act Regulations

Worksheet 5 29 CFR Part 1626 - Age Discrimination in Employment Act Regulations Procedures

Worksheet 6 29 CFR Part 1627 - ADEA Regulations Regarding Records to Be Made or Kept Relating to Age; Notices to be Posted

Worksheet 7 29 CFR Part 1630 - Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act

Worksheet 8 Appendix to 29 CFR Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act

Worksheet 9 Selected Sections of the EEOC Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act

Worksheet 10 EEOC Notice 915.002 (6/8/93) - Interim Enforcement Guidance on Application of ADA to Disability-Based Distinctions in Employer-Provided Health Insurance

Worksheet 11 Age Discrimination in Employment Act - 29 USC § § 621 Through 634

Worksheet 12 Title VII of the Civil Rights Act of 1964 - 42 USC § § 2000e et seq.

Worksheet 13 Americans with Disabilities Act - Subchapter I (Employment)

Bibliography

OFFICIAL

Statutes:

United States Code:

Legislative History:

Treasury Regulations:

Department of Labor and EEOC Regulations and Guidelines:

Treasury Rulings:

Cases:

UNOFFICIAL

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