4 ms·

> The short answer is that it's generally legal to consider salary demands in a hiring situation, but not in the context of firing or laying people off. This i

by traek 8y ago

> The short answer is that it's generally legal to consider salary demands in a hiring situation, but not in the context of firing or laying people off. This is just plainly untrue. See Hazen Paper Co. v. Biggins.

wahern 8y ago
TL;DR: It is legal to consider salary demands in either situation, so long as such consideration is based on years of service or some similar metric rather than age, per se. At least in the context of the Federal Age Discrimination in Employment Act (ADEA).
notacoward 8y ago
If you're going to claim a complex statement is untrue, it would be constructive to identify which part, and Hazen didn't have anything to do with the hiring case. It would also help to have the facts on your side. As it turns out, Hazen didn't even provide a clear answer for the firing/layoff case. On the one hand, they decided that interference with a pension did not automatically violate ADEA. On the other, they decided that it did violate ERISA and sent the case back to the appeals court to be decided in accordance with their decision that Hazen had in fact acted illegally and willfully. So, basically, you have misread or misrepresented the case. [1] https://www.oyez.org/cases/1992/91-1600 https://www.oyez.org/cases/1992/91-1600
- traek 8y ago
  Do you know what the ADEA and ERISA are? ADEA (Age Discrimination in Employment Act) is the law that relates to age discrimination. The Supreme Court ruled that it is not de facto illegal to consider pensions, or other things that are correlated with age (such as salary), as long as the intent was not to discriminate based upon age. ERISA (Employee Retirement Income Security Act) is a law that narrowly deals with pensions. It does not address age discrimination more generally. Your statement that "[it's generally not legal] to consider salary demands ... in the context of firing or laying people off" is factually inaccurate.
  - notacoward 8y ago
    Using salary/seniority as a filter for layoffs is fraught with peril, because of disparate impact and the high correlation with age. This is even more true when things like stock or options given as rewards for past performance are involved. You have yet to provide a shred of evidence to the contrary. Maybe you should try, instead of citing cases that prove the opposite of what you claim or going off on tangents to support a thinly veiled "do you know" ad hominem. Do you know about the concept of using proxies for a proscribed criterion, and how the courts have treated it?
    - traek 8y ago
      The courts have ruled that employers don’t have to defend disparate impact based on a “business necessity,” the normal defense to a disparate impact case, which is a high bar to clear. See the Smith v. Jackson ruling, which clarified that in an age discrimination disparate case, the defendant must only show “reasonable factors other than age,” and NOT business necessity. RFOA is a much lower bar. Given a genuine lack of intent to discriminate based on age, any competent lawyer would be able to argue that salary is a RFOA. You, meanwhile, have cited nothing.
      - notacoward 8y ago
        You're still misrepresenting the state of the law. Yes, you absolutely can use factors other than age, but not deliberately as a proxy for age. Again, Hazen. Also Taggart v. Time (which uses "euphemism" instead of "proxy" but reaches the same conclusion). Intent does matter, though disparate impact alone carried the day in Smith v. City of Jackson. If you're going to play a lawyer online, learn the law. Using phrases like "plainly untrue" for areas of the law that are complex and still rapidly evolving isn't very constructive. As I said earlier, it's possible to use salary etc. in good faith, but it's risky and anyone who does it had better be extra-prepared to document their processes in case of a challenge.
        deleted 8y ago
        [deleted]

by traek 8y ago

wahern 8y ago

TL;DR: It is legal to consider salary demands in either situation, so long as such consideration is based on years of service or some similar metric rather than age, per se. At least in the context of the Federal Age Discrimination in Employment Act (ADEA).

notacoward 8y ago

If you're going to claim a complex statement is untrue, it would be constructive to identify which part, and Hazen didn't have anything to do with the hiring case. It would also help to have the facts on your side. As it turns out, Hazen didn't even provide a clear answer for the firing/layoff case. On the one hand, they decided that interference with a pension did not automatically violate ADEA. On the other, they decided that it did violate ERISA and sent the case back to the appeals court to be decided in accordance with their decision that Hazen had in fact acted illegally and willfully. So, basically, you have misread or misrepresented the case. [1] https://www.oyez.org/cases/1992/91-1600 https://www.oyez.org/cases/1992/91-1600

traek 8y ago
Do you know what the ADEA and ERISA are? ADEA (Age Discrimination in Employment Act) is the law that relates to age discrimination. The Supreme Court ruled that it is not de facto illegal to consider pensions, or other things that are correlated with age (such as salary), as long as the intent was not to discriminate based upon age. ERISA (Employee Retirement Income Security Act) is a law that narrowly deals with pensions. It does not address age discrimination more generally. Your statement that "[it's generally not legal] to consider salary demands ... in the context of firing or laying people off" is factually inaccurate.
- notacoward 8y ago
  Using salary/seniority as a filter for layoffs is fraught with peril, because of disparate impact and the high correlation with age. This is even more true when things like stock or options given as rewards for past performance are involved. You have yet to provide a shred of evidence to the contrary. Maybe you should try, instead of citing cases that prove the opposite of what you claim or going off on tangents to support a thinly veiled "do you know" ad hominem. Do you know about the concept of using proxies for a proscribed criterion, and how the courts have treated it?
  - traek 8y ago
    The courts have ruled that employers don’t have to defend disparate impact based on a “business necessity,” the normal defense to a disparate impact case, which is a high bar to clear. See the Smith v. Jackson ruling, which clarified that in an age discrimination disparate case, the defendant must only show “reasonable factors other than age,” and NOT business necessity. RFOA is a much lower bar. Given a genuine lack of intent to discriminate based on age, any competent lawyer would be able to argue that salary is a RFOA. You, meanwhile, have cited nothing.
    - notacoward 8y ago
      You're still misrepresenting the state of the law. Yes, you absolutely can use factors other than age, but not deliberately as a proxy for age. Again, Hazen. Also Taggart v. Time (which uses "euphemism" instead of "proxy" but reaches the same conclusion). Intent does matter, though disparate impact alone carried the day in Smith v. City of Jackson. If you're going to play a lawyer online, learn the law. Using phrases like "plainly untrue" for areas of the law that are complex and still rapidly evolving isn't very constructive. As I said earlier, it's possible to use salary etc. in good faith, but it's risky and anyone who does it had better be extra-prepared to document their processes in case of a challenge.
      - deleted 8y ago
        [deleted]