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AGE DISCRIMINATION CLAIMS ASSISTANCE ACT (1988)


P.L. 100-283, approved by the President on April 12, 1988, temporarily extended the statute of limitations under Section 7(e) although it did not directly amend the section. The Act provides as follows:
 
SECTION 1. SHORT TITLE.

This Act may be cited as the "Age Discrimination Claims Assistance Act of 1988."
 
SECTION 2. FINDINGS.
The Congress finds that:
(1) the Equal Employment Opportunity Commission (hereafter in this Act referred to as the "Commission") has failed to process an undetermined number of charges filed under the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621-634) before the running of the statute of limitations applicable to bringing civil actions in the Federal courts under such Act, and  
   
(2) many persons who filed such charges with the Commission have lost the right to bring civil actions with respect to the unlawful practices alleged in such charges.  
 
SECTION 3. EXTENSION OF STATUTE OF LIMITATIONS.
Notwithstanding section 7(e) of the Age Discrimination in Employment Act of 1967 (29 U.S.C 626(e)), a civil action may be brought under section 7 of such Act by the Commission or an aggrieved person, during the 540 day period beginning on the date of enactment of this Act (April 12, 1988) if
(1) with respect to the alleged unlawful practice on which the claim in such civil action is based, a charge was timely filed under such Act with the Commission after December 31, 1983,  
   
(2) the Commission did not, within the applicable period set forth in section 7(e) either  
(A) eliminate such alleged unlawful practice by informal methods of conciliation, conference, and persuasion, or  
   
(B) notify such persons, in writing of the disposition of such charge and of the right of such person to bring a civil action on such claim,  
   
(3) the statute of limitations applicable under such section 7(e) to such claim ran before the date of enactment of this Act, and  
   
(4) a civil action on such claim was not brought by the Commission or such person before the running of the statute of limitations,  
 
SECTION 4. NOTICE OF STATUTE OF LIMITATIONS.
(a) Notice Regarding Claims For Which Statute of Limitations is Extended. Not later than 60 days after the date of enactment of this Act (April 12, 1988), the Commission shall provide the notice specified in subsection (b) to each person who has filed a charge to which section 3 applies.

(b) Contents of Notice. The notice required to be provided under subsection (a) to a person shall be in writing and shall include the following information:
(1) The rights and benefits to which such person is entitled under the Age Discrimination in Employment Act of 1967.  
   
(2) The date (which is 540 days after the date of the enactment of this Act (April 12, 1988) on which the statute of limitations applicable to such person's claim will run.  
   
(3) That such person may bring a civil action on such claims before the date specified in paragraph (2).  
 
SECTION 5. REPORTS.
(a) Contents of Reports. For each 180-day period in the 540 day period beginning on the date of enactment of this Act (April 12, 1988), the Commission shall submit a written report that includes all of the following information:

(1) The number of persons who have claims to which section 3 applies and the dates charges based on such claims were filed with the Commission.  
   
(2) The number of persons to whom notice was provided in accordance with section 4(a) and the date the notice was provided.  
   
(3) With respect to alleged unlawful practices on which claims affected by section 3 are based, the number of such alleged unlawful practices that the Commission has attempted to eliminate by informal methods of conciliation, conference, and persuasion in the 180 day period for which the report is submitted.  
   
(4) The number of alleged unlawful practices referred to in paragraph (3) that were so eliminated in such period.  
   
(5) The number of civil actions filed by the Commission on behalf of persons to whom notice was sent under section.  
 
(b) Summon of Reports. Each report required by subsection (a) shall be submitted by the Commission to

(1) the Committee on Education and Labor, and the Select Committee on Aging, and the House of Representatives, and  
   
(2) the Committee on Labor and Human Resources, and the Special Committee on Aging, of the Senate, not later than 30 days after the expiration of the 180-day period for which such report is required.  
 
Prior to amendment by P.L. 95-256, Section 7(d) read as follows:
"(d) No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action. Such notice shall be filed
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or  
   
(2) in a case to which section 14(b) applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.  
 
Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion."
 
SECTION 8. NOTICES TO BE POSTED.
Every employer, employment agency, and labor organization shall post and keep posted in conspicuous places upon its premises a notice to be prepared or approved by the Secretary setting forth information as the Secretary deems appropriate to effectuate the purposes of this Act.
 
SECTION 9. RULES AND REGULATIONS.
In accordance with the provisions of subchapter II of chapter 5, United States Code, the Secretary of Labor may issue such rules and regulations as he may consider necessary or appropriate for carrying out this Act, and may establish such reasonable exemptions to and from any or all provisions of this Act as he may find necessary and proper in the public interest.
 
Amendments
P.L. 101-433, Act Section 104 provides:
 
SECTION 104 RULES AND REGULATIONS.
Notwithstanding section 9 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 628), the Equal Employment Opportunity Commission may issue such rules and regulations as the Commission may consider necessary or appropriate for carrying out this title, and the amendments made by this title, only after consultation with the Secretary of the Treasury and the Secretary of Labor.
 
SECTION 10. CRIMINAL PENALTIES.
Whoever shall forcibly resist, oppose, impede, intimidate, or interfere, with a duly authorized representative of the Secretary while he is engaged in the performance of duties under this Act shall be punished by a fine of not more than $500 or by imprisonment for not more than one year, or by both: Provided, however, that no person shall be imprisoned under this section except when there has been a prior conviction hereunder.
 
SECTION 11. DEFINITIONS.
For the purposes of this Act

(a) The term "person" means one or more individuals, partnerships, associations, labor organizations, corporations, business trusts, legal representatives, or any organized groups of persons.
 
(b) The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, that prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means
(1) any agent of such a person, and  
   
(2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.  
 
(c) The term "employment agency" means any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person; but shall not include an agency of the United States.
 
(d) The term "labor organization" means a labor organization engaged in an industry affecting commerce, and any agent of such an organization, and includes any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment, and any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization.
 
(e) A labor organization shall be deemed to be engaged in an industry affecting commerce if (1) it maintains or operates a hiring hall or hiring office which procures employees for an employer or procures for employees opportunities to work for an employer, or (2) the number of its members (or, where it is a labor organization composed of other labor organizations or their representatives, if the aggregate number of the members of such other labor organization) is fifty or more prior to July I, 1968, or twenty-five or more on or after July 1, 1968, and such labor organization

(1) is the certified representative of employees under the provisions of the National Labor Relations Act, as amended, or the Railway Labor Act, as amended; or  
   
(2) although not certified, is a national or international labor organization or a local labor organization recognized or acting as the representative of employees of an employer or employers engaged in an industry affecting commerce; or  
   
(3) has chartered a local labor organization or subsidiary body which is representing or actively seeking to represent employees of employers within the meaning of paragraph (1) or (2); or  
   
(4) has been chartered by a labor organization representing or actively seeking to represent employees within the meaning of paragraph (1) or (2) as the local or subordinate body through which such employees may enjoy membership or become affiliated with such labor organization; or  
   
(5) is a conference, general committee, joint or system board, or joint council subordinate to a national or international labor organization, which includes a labor organization engaged in an industry affecting commerce within the meaning of any of the preceding paragraphs of this subsection.  
 
(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 policy-making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision. The term "employee" includes any individual who is a citizen of the United States employed by an employer in a workplace in a foreign country.
 
(g) The term "commerce" means trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or within the District of Columbia, or a possession of the United States; or between points in the same State but through a point outside thereof.
 
(h) The term "industry affecting commerce" means any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce and includes any activity or industry "affecting commerce" within the meaning of the Labor-Management Reporting and Disclosure Act of 1959.
 
(i) The term "State" includes a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and Outer Continental Shelf Lands defined in the Outer Continental Shelf Lands Act.
 
(j) The term "firefighter" means an employee, the duties of whose position are primarily to perform work directly connected with the control and extinguishment of fires or the maintenance and use of fire fighting apparatus and equipment, including an employee engaged in this activity who is transferred to a supervisory or administrative position.
 
(k) The term "law enforcement officer" means an employee, the duties of whose position are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of a State, including an employee engaged in this activity who is transferred to a supervisory or administrative position. For the purpose of this subsection, "detention" includes the duties of employees assigned to guard individuals incarcerated in any penal institution.
 
(1) The term "compensation, terms, conditions, or privileges of employment" encompasses all employee benefits, including such benefits provided pursuant to a bona fide employee benefit plan.
 
Amendments
P.L. 101-433 Section 102:
Amended ADEA Section 11 by adding new subsection (1) to read as above, effective with respect to any employee benefits established or modified after October 16, 1990 and other conduct occurring after April 14, 1991. See also Act. Section 105 under Historical Comment to Act Section 104.
 
P.L. 99-592, Section 4, added ADEA Secs. 11(j) and 11(k). The amendment is generally effective on January 1, 1987. For additional details on the effective date, see the Historical Comment following ADEA Section 4.
 
P.L. 98-459, Section 801 (a) amended ADEA Section 11 (f) to read as above by adding a new sentence at the end, effective October 9, 1984.
 
Prior to amendment by P.L. 95-256, Secs. 11(b), 11(c ) and 11(f) read as follows:
"(b) The term 'employer' means a person engaged in an industry affecting commerce who has twenty-five or more employees for each working day in each of twenty or more calendar weeks in the current or proceeding calendar year: Provided, that prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term does not include the United States, a corporation wholly owned by the Government of the United States, or a State or political subdivision thereof.
 
(c ) The term 'employment agency' means any person regularly undertaking with or without compensation to procure employees for an employer and includes an agent of such a person; but shall not include an agency of the United States, or an agency of a State or political subdivision of a State, except that such term shall include the United States Employment Service and the system of State and local employment services receiving Federal assistance.
 
(f) The term 'employee' means an individual employed by an employer.
 
SECTION 12. AGE LIMITATION.
(a) The prohibitions in this Act shall be limited to individuals who are at least 40 years of age.
 
(b) In the case of any personnel action affecting employees or applicants for employment which is subject to the provisions of section 15 of this Act, the prohibitions established in section 15 of this act shall be limited to individuals who are at least 40 years of age.
 
(c)
(l) Nothing in this Act shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policy-making position, if such employee is entitled to an immediate non-forfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000.  
   
(2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Secretary, after consultation with the Secretary of the Treasury, so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.  
 
(d) Nothing in this Act shall be construed to prohibit compulsory retirement of any employee who has attained 70 years of age, and who is serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) at an institution of higher education (as defined by section 1201(a) of the Higher Education Act of 1965).
 
Amendments
P.L. 101-239, 6202(b)(3)(C ) amended ADEA Section 12(a) by striking "except the provisions of section 4(g))", effective for items and services furnished after December 19, 1989.
 
P.L. 99-592, Section 2(c )(1), amended ADEA Section 12 (a) by striking out "but less than seventy years of age" after the words "40 years of age." Section 2(c ) amended ADEA section 12 (c )(2) by striking out "buy not seventy years of age," after the words "65 years of age." The amendment is generally effective on January 1, 1987. For greater details on the effective date, see Historical comment with respect to P.L. 99-592 following Section 4 of the ADEA.
 
P.L. 99-592, Section 6(a), added ADEA Section 12(d). The provision is generally effective on January 1, 1987. Additional details relating to the effective date of P.L. 99-592 are in the Historical comment following Section 4 of the ADEA. Section 6(b) of the Act provides that the amendment of Section 6(a), adding ADEA Section 12(d), relating to college professors, is repealed on December 31, 1993.
 
P.L. 99-592, Section 6(c ) provides:
(c) Study Required.
(1) The Equal Employment Opportunity Commission shall, not later than 12 months after the date of enactment of this Act, (October 31, 1987), enter into an agreement with the National Academy of Sciences for the conduct of a study to analyze the potential consequences of the elimination of mandatory retirement on institutions of higher education.  
   
(2) The study required by paragraph (1) of this subsection shall be conducted under the general supervision of the National Academy of Sciences by a study panel composed of 9 members. The study panel shall consist of  
 
(A) 4 members who shall be administrators at institutions of higher education selected by the National Academy of Sciences after consultation with the American Council of Education, the Association of American Universities, and the National Association of State Universities and Land Grant Colleges;  
   
(B) 4 members who shall be teachers or retired teachers at institutions of higher education (who do not serve in an administrative capacity at such institutions), selected by the National Academy of Sciences after consultation with the American Federation of Teachers, the National Education Association, the American Association of University Professors, and the American Association of Retired Persons; and  
 
(C) one member selected by the National Academy of Sciences.  
 
(3) The results of the study shall be reported, with recommendations, to the President and to the Congress not later than 5 years after the date of enactment of this Act (October 31, 1991).  
   
(4) The expenses of the study required by this subsection shall be paid from funds available to the Equal Employment Opportunity Commission.  
 
P.L. 99-272, Section9201(b)(2) amended ADEA Section 12(a) by inserting "(except the provisions of section 4(g))" after "Act."
 
P.L. 98-459, Section 802(c)(1) amended ADEA Section 12(c )(1) by striking out "$27,000" and inserting "$44,000" instead, effective October 9, 1984 except that the amendment does not apply with respect to any individual who retires or is compelled to retire before October 9, 1984.
 
P.L. 95-256 added Section 12(d), effective January 1, 1979, automatically repealed July 1, 1982. Prior to repeal, the provision read as follows: "(d) Nothing in this Act shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age but not 70 years of age, and who is serving under a contract of unlimited tenure (or similar arrangement providing for unlimited tenure) at an institution of higher education (as defined by section 1201(a) of the Higher Education Act of 1965)."
 
SECTION 13. ANNUAL REPORT.
The Secretary shall submit annually in January a report to the Congress covering his activities for the preceding year and including such information, data, and recommendations for further legislation in connection with the matters covered by this Act as he may find advisable. Such report shall contain an evaluation and appraisal by the Secretary of the effect of the minimum and maximum ages established by this Act, together with his recommendations to the Congress. In making such evaluation and appraisal, the Secretary shall take into consideration any changes which may have occurred in the general age level of the population, the effect of the Act upon workers not covered by its provisions, and such other factors as he may deem pertinent.
 
SECTION 14. FEDERAL-STATE RELATIONSHIP.
(a) Nothing in this Act shall affect the jurisdiction of any agency of any State performing like functions with regard to discriminatory employment practices on account of age except that upon commencement of action under this Act such action shall supersede any State action.
 
(b) In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 7 of this Act before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, that such sixty-day period shall be extended to one hundred and twenty days during the first year after the effective date of such State law. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.
 
SECTION I5. FEDERAL EMPLOYEES.
(a) All personnel actions affecting employees or applicants for employment who are at least 40 years of age (except personnel actions with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, United States Code, in executive agencies as defined in section 105 of title 5, United States Code (including employees and applicants for employment who are paid from non-appropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service, and in the Library of Congress shall be made free from any discrimination based on age.
 
(b) Except as otherwise provided in this subsection, the Civil Service Commission is authorized to enforce the provisions of subsection (a) through appropriate remedies, including reinstatement or hiring of employees with or without backpay, as will effectuate the policies of this section. The Civil Service Commission shall issue such rules, regulations, orders, and instructions as it deems necessary and appropriate to carry out its responsibilities under this section. The Civil Service Commission shall

(1) be responsible for the review and evaluation of the operation of all agency programs designed to carry out the policy of this section, periodically obtaining and publishing (on at least a semi-annual basis) progress reports from each such department, agency, or unit;  
   
(2) consult with and solicit the recommendations of interested individuals, groups, and organizations relating to nondiscrimination in employment on account of age; and provide for the acceptance and processing of complaints of discrimination in Federal employment on account of age.  
 
The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions of the Civil Service Commission which shall include a provision that an employee or applicant for employment shall be notified of any final action taken on any complaint of discrimination filed by him thereunder. Reasonable exemptions to the provisions of this section may be established by the Commission but only when the Commission has established a maximum age requirement on the basis of a determination that age is a bona fide occupational qualification necessary to the performance of the duties of the position. With respect to employment in the Library of Congress, authorities granted in this subsection to the Civil Service Commission shall be exercised by the Librarian of Congress.
 
(c) Any persons aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act.
 
(d) When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by the individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred. Upon receiving a notice of intent to sue, the Commission shall promptly notify all persons named therein as prospective defendants in the action and take any appropriate action to assure the elimination of any unlawful practice.
 
(e) Nothing contained in this section shall relieve any Government agency or official of the responsibility to assure nondiscrimination on account of age in employment as required under any provision of Federal law.

(f) Any personnel action of any department, agency or other entity referred to in subsection (a) of this section shall not be subject to, or affected by, any provision of this Act, other than the provisions of section 12(b) of this Act and the provisions of this section.

(g)
(l) The Civil Service Commission shall undertake a study relating to the effects of the amendments made to this section by the Age Discrimination in Employment Act Amendments of 1978, and the effects of section 12(b) of this Act, as added by the Age Discrimination in Employment Act Amendments of 1978.  
   
(2) The Civil Service Commission shall transmit a report to the President and to the Congress containing the findings of the Commission resulting from the study of the Commission under paragraph (1) of this subsection. Such report shall be transmitted no later than January 1, 1980.  
 
Amendments
P.L. 95-256 amended Section 15(a) by adding "who are at least 40 years of age" after the word "employment."
 
P.L. 93-259 added Section 15(a) through (e) as a new provision.
 
SECTION 16 EFFECTIVE DATE.
This Act shall become effective one hundred and eighty days after enactment, except (a) that the Secretary of Labor may extend the delay in effective date of any provision of this Act up to an additional ninety days thereafter if he finds that such time is necessary in permitting adjustments to the provisions hereof, and (b) that on or after the date of enactment the Secretary of Labor is authorized to issue such rules and regulations as may be necessary to carry out its provisions.
 
Amendments.
Prior to amendment by P.L. 95-259, Section 16 was designated as Section 15 of the Age Discrimination in Employment Act.
 
SECTION 17. APPROPRIATIONS.
There are hereby authorized to be appropriated such sums as may be necessary to carry out this Act.
 
Amendments
Prior to amendment by P.L. 95-256, Section 17 contained an annual appropriation limit of $5,000,000. Prior to amendment by P.L. 93-259, Section 17 was designated Section 16.

Last updated: 03-04

 
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