Urbana Schools Offers All Employers “Lesson” on Age Discrimination

(Photo of U.S. Circuit Court of Appeals, Seventh Circuit Kitty Cat Portrayer in My Employment Law Class)

Urbana School District 116 was sued yesterday by the Equal Employment Opportunity Commission for age discrimination. Chuck Koplinski, a teacher, finished classes that advanced him on the salary scale. He should have received a $4,994 raise. Urbana denied him that raise because he is within ten years of being eligible for a pension.

Koplinski (and others like him) say that is age discrimination. Urbana, citing a defense in the Age Discrimination in Employment Act, says it’s a “reasonable factor other than age” (RFOA).

That the EEOC has filed suit is itself remarkable. The agency only sues in behalf of employees in less than 1% of the discrimination complaints it receives. For the other 99%, individuals are given a “right to sue” letter. That allows them to proceed—at their own expense— in court with a discrimination complaint.

So, Urbana teachers are already winners— federal government attorneys are taking their case. This also implies that the EEOC believes it has a good case.

They do. Our federal appellate courts are divided into 11 numbered circuits, plus the D.C. circuit. These appeals courts have distinct legal personalities. As my students know, I demonstrate these tendencies by comparing circuits to kitty cats— idiosyncratic, hard to herd, independently minded.

The 7^th Circuit covers Illinois, Indiana, and Wisconsin. And this kitty cat really disapproves age discrimination.

Solon v. Gary Comm. Schools is the lead case here. Like Urbana Schools, Gary School District was under financial pressure. Like Urbana, they negotiated a discriminatory policy with their union.  Unlike Urbana, the policy was voluntary.

It said this: If you are 58 years old (four years ahead of being eligible to retire in Indiana), we’ll pay you four years of a starting teacher salary if you end your employment. If you are 59, we will pay you three years if you end your employment. If you are 60, we will pay you two years; and if you are 61, we will pay you one year.

Even though the plan was voluntary—a teacher could just keep on teaching past these age thresholds— the 7^th Circuit ruled that it violated the age discrimination act. Why? Because the plan was age-indexed, and the older a teacher was, the less the teacher was to be paid under the plan.

Urbana appears to be saying that it’s not using an age indexed plan. That is technically true. Urbana did not expressly reference age.

But as the EEOC noted in its press release yesterday, Urbana’s plan is age indexed by another name. It caps pay for any employee who is within ten years of being eligible to retire, and that always has an older age element. However you determine an employee’s eligibility to retire, the plan caps pay for some employees who are over 40 years old—the age discrimination threshold—compared to employees who are under 40. No one under 40 years of age is capped.

That appears to be a strong case for the EEOC and affected teachers.

Three concluding thoughts. 1. The Age Discrimination in Employment Act provides double damages for violations (because older workers have less time in the labor market to cure the damaging effects of discrimination). 2. Gary tried the “RFOA” (reasonable factor other than age) defense. That kitty cat in the picture ruled in favor of the teachers. 3. Whether you are a public or private sector employer, avoid pay plans that are age-indexed.