The BNSF Railway recently paid $800,000 to settle an age discrimination lawsuit brought by the EEOC. The EEOC alleged that BNSF denied older employees certain benefits brought under an exit incentive plan.
According to the EEOC, 137 current and former employees were denied benefits under an exit incentive program, because they were already eligible to retire. The Burlington, Northern and Santa Fe Railroad, or BNSF, offered exit incentives to clerical employees in an effort to reduce staff. However, it illegally failed to offer those same incentives to older employees who became eligible to retire at age 60.
BNSF Railway Company operates one of the largest North American rail networks, with about 32,000 route miles in 28 states and two Canadian provinces.
The exit offer included employees in Kansas City, Fort Worth, and Alliance, Nebraska. However, it excluded any employee old enough to qualify for retirement. Employees may retire from GNSF when they reach the age of 60 with 30 years of service with the company. The employees were eligible for a pension from the federal Railroad Retirement plan.
Under the exit incentive plan, employees who stopped work early received $2,500 per month for three years, or a lump sum of $90,000. However, no employee over the age of 60 was offered the exit incentive.
When the clerical jobs were abolished, many of the workers were “bumped” into lower-paying jobs and retired as a result. The EEOC identified several of the 102 employees who were involved.
Erma Gossage was 63 when she was denied the opportunity to participate in the exit incentive plan offered to younger workers. Because the three years of exit incentive pay qualified as employment, Gossage would have qualified for a higher pension with the plan.
Ellen Foste was a 72-year-old clerical employee who was offered a choice. She could retire, or take a job driving a van at night. Foste had 27 years of employment with the BNSF. If she had been offered the exit incentive, she would have qualified for a full pension under the federal Railroad Retirement plan.
The railroad argued that the exit incentives were designed to motivate employees who were not eligible for a federal Railroad Retirement plan pension to retire early. The amount offered by the company was equivalent to the payments under the Railroad Retirement plan. BNSF also argued that more than 100 people over 60 who were not eligible for retirement were offered exit incentives.
Barbara Seely, Attorney in the St. Louis EEOC District Office, and lead counsel on the case, said, “Under Railroad Retirement Board rules, retirement eligibility is directly tied to age. Denying employees benefits because they are eligible to retire is age discrimination. Employees who are old enough to retire don’t necessarily want to stop working; they are entitled to receive the same benefits as younger workers.”
Donald Munro, lead counsel for BNSF, responded by stating, “BNSF is committed to a discrimination-free workplace and has always maintained that its voluntary early retirement programs do not discriminate in any way on the basis of age. The railroad decided to settle to avoid the substantial cost of further litigation, but in doing so insisted on an express statement that there is no admission of liability.”
BNSF denies any wrongdoing in the matter, and insists that it is simply settling the claim in an effort to avoid a lengthy, expensive lawsuit with the EEOC – the U.S. Equal Employment Opportunity Commission.
This finding underscores the fact that early retirement or exit incentives must be uniformly offered to all employees, regardless of age. Since only older employees are qualified for retirement, by definition, any policy that excludes those qualified for retirement is discrimination under the law.
If you live or work in the state of Kansas you should be aware that there laws protecting you from harassment and discrimination in the workplace. There are federal statutes that address certain areas of discrimination and employment and many states have adopted their own policies as well. Kansas is one such state; in fact they have set up the Kansas Human Rights Commission to educate the public, enforce the rules and take complaints about discrimination.
The goal of the Kansas Human Rights Commission is to prevent and eliminate discrimination and assure equal opportunities in all employment relations. UnderKansas (KS) Job Discrimination Law in the Workplace it is considered unlawful employment practice for an employer because of the race, religion, color, sex; disability, National origin or ancestry of any person, to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions, or privileges of employment; to limit, segregate, separate, classify or make any distinction in regards to employees; or to follow any employment procedure or practice which, in fact, results in discrimination, segregation or separation without a valid business necessity. It is also against the law to discharge, retaliate or in any other way discriminate against an individual for their opposition to practices covered under these laws or for filing a complaint regarding such matters.
It is also considered a violation of Kansas (KS) Job Discrimination Law in the Workplace for any employer to seek to obtain, to obtain or to use genetic screening or testing information of an employee or a prospective employee to distinguish between or discriminate against or restrict any right or benefit otherwise due or available to an employee or a prospective employee; or to subject, directly or indirectly, any employee or prospective employee to any genetic screening or test.
While Title VII is the federal law that governs discrimination in the workplace, Kansas sexual discrimination law in the workplace falls under the Kansas Act Against Discrimination. Under this act, it is illegal for employers to treat employees differently on the basis of sex.
The Kansas Act Against Discrimination defines employers as anyone (including labor organizations, nonsectarian corporations and political and municipal subdivisions) who employs four or more people. It excludes nonprofit social and fraternal associations. This differs from Title VII because Title VII only applies to those employers who have fifteen or more employees.
Employees under this act are defined as those who are employed by the employers, except for those employed by their parents, spouse or child and those working in domestic service positions.
The Kansas Act Against Discrimination makes illegal any act that distinguishes based on sex an employee’s terms, conditions or compensation. It also includes discrimination of people based on the age of their children or of women due to pregnancy and related issues.
To file a complaint against an employer, employees must submit an information sheet to the Kansas Human Rights Commission within six months of the alleged discriminatory act; you can get help with this from an intake officer.
The first thing the Commission will do is attempt mediation. If mediation fails, they will investigate the claims. The investigator will report information to a commissioner who will make the final decision. If the commissioner finds reasonable cause that your rights have been violated, you and your employer will try to reach a settlement. If this is unsuccessful, you’re case will go to public hearing.
It is possible to skip the Commission investigation and go directly to the courts, but you’ll have to file a request for a “Right to Sue” letter from either the EEOC or the Kansas Human Rights Commission first.
This is just an overview of the sexual discrimination laws in Kansas. Employers should keep posted an up-to-date version of the Kansas Complete Labor Law poster in the workplace so that everyone is aware of their rights and responsibilities when it comes to keeping the workplace safe for everyone.
Kansas and federal law doesn’t allow employees to be discriminated against because of race, religion, sex, national origin, color, age, ancestry or disability. The Kansas Human Rights Commission is in charge of stopping discrimination in the workplace. The Commission’s goal is to eliminate and prevent discrimination in the workplace and assure equal opportunities for everyone in the workplace.
Employers in Kansas are required by state and federal law to display posters in the workplace that inform employees of their rights under the law. Employers with no workers under the age of eighteen are required to display up to eight posters while employers with workers under eighteen years of age are required to display as many as nine posters. One type of poster that is required is the Kansas state discrimination posters. The Kansas state discrimination posters must be displayed in an area where employees are known to gather.
The Kansas state discrimination posters should outline what protections and rights employees enjoy under both federal and state law. The Kansas state discrimination posters should breakdown the federal anti-discrimination laws that apply to each employee. The poster also informs the workers what they should do and where they need to go if they feel they are a victim of discrimination.
An alleged victim of discrimination may file a discrimination complaint him/herself or the alleged victim may have an attorney file the complaint in his/her place. The complaint can begin with a phone call, a letter, or a personal visit. It must be filed within six months after the last incident of discrimination occurred. Any and all complaints received by the Commission must be investigated.
It is the responsibility of every employer in Kansas to make sure there aren’t any acts of discrimination happening in the workplace. It is also the employers’ responsibility to make sure they display the Kansas state discrimination posters in a place where all employees will be able to see them. Failure to comply is against the law.
The Kansas Human Rights Commission enforces state civil rights laws which prohibit discrimination in employment on the basis of race, color, religion, national origin, ancestry, sex, disability, or age.
I know that discrimination can occur in written and unwritten policies and practices including job advertisements, benefits, demotion, discharge, discipline, harassment, hiring, layoff, maternity, promotion, recall, references, unfavorable reinstatement, involuntary retirement, suspension, terms, training, union representation and wages.
Businesses regulated by these laws include private employers, educational institutions, governmental entities and unions. Employers must hang a poster outlining the anti-discrimination employment laws in their place of business.
My research has revealed some of the guidelines the KHRC gives to employers to protect them from discrimination lawsuits. Understanding employment law is crucial for both the employer and the employee or applicant. The criteria used to select employees should be based on merit and job competency, and should relate to actual job performance. For example, advertisements for jobs traditionally stereotyped as “male” or “female” should stress that both sexes are encouraged to apply. Advertisements for open positions should also not express an age preference unless there is a bona fide qualification of age for the position.
An objective interview provides the best perspective from which to determine the knowledge, skill, and abilities of an applicant. Some areas of questioning are relevant and necessary when exploring an applicant’s qualifications for a position, such as previous work experience, education, training, and authorization to work in the U.S.
In general, an employer should not use any testing or selection procedure that has an adverse impact on members of racial, ethnic, or gender groups. After an offer of employment has been made, an employer may require the applicant to submit to a drug test or medical examination, as long as all entering employees in the same job category face that same requirement, and information obtained remains confidential except to supervisors/managers, or for safety reasons.
I have read that Kansas law prohibits requiring any employee or applicant to submit to a polygraph test, and from discharging, disciplining, or discriminating against an employee or applicant for refusing to take a polygraph test.
If a worker believes they have been discriminated against, they may file a complaint personally or by attorney. An individual may write, telephone or come in to any KHRC office to begin the filing process. Intake workers can assist in drafting a complaint based on information provided by the complainant. The complaint must be signed and notarized before it can be officially filed with the commission. There is no filing fee.
Complaints on any basis in the area of employment must be filed within six (6) months of the last alleged discriminatory act. In some instances, the time limit for filing a complaint with the KHRC does not begin on the effective date of an adverse employment decision, but when the person could reasonably be considered to have received notice of the adverse employment decisions.