7.4 Age Discrimination in Employment Act (ADEA), GINA, USERRA Military Leave Protections & 42 U.S.C. § 1983 Actions

7.4 Age Discrimination in Employment Act (ADEA), GINA, USERRA Military Leave Protections & 42 U.S.C. § 1983 Actions

Public sector HR administration requires mastery of specialized federal anti-discrimination and employee protection statutes, along with constitutional litigation mechanisms unique to government employers. This section details the Age Discrimination in Employment Act of 1967 (ADEA), the Older Workers Benefit Protection Act (OWBPA), the Genetic Information Nondiscrimination Act of 2008 (GINA), the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), and constitutional tort actions under 42 U.S.C. § 1983.

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1. Age Discrimination in Employment Act of 1967 (ADEA)

The ADEA (29 U.S.C. § 621 et seq.) protects applicants and employees who are 40 years of age and older from discrimination in hiring, promotion, compensation, discharge, and terms of employment. Unlike Title VII, the ADEA does not protect younger workers from "reverse age discrimination" (e.g., favoring a 50-year-old over a 30-year-old is lawful under General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581 (2004)).

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|                         ADEA COMPLIANCE & LEGAL FRAMEWORK                                         |
|                                                                                                   |
|   COVERAGE & THRESHOLDS:                                                                          |
|   • Protects individuals aged 40 AND OLDER.                                                       |
|   • Applies to state, local, and federal government entities.                                     |
|                                                 |                                                 |
|   LEGAL THEORIES OF DISCRIMINATION:                                                               |
|   1. Disparate Treatment: Gross v. FBL Financial Services, 557 U.S. 167 (2009) established that   |
|      plaintiff must prove age was the "BUT-FOR" cause of the adverse action (mixed-motive         |
|      claims are not recognized under the ADEA, unlike Title VII).                                 |
|   2. Disparate Impact: Smith v. City of Jackson, 544 U.S. 228 (2005) held disparate impact        |
|      applies to ADEA, but employer can defend by proving action was based on Reasonable Factors   |
|      Other than Age (RFOA).                                                                       |
|                                                 |                                                 |
|   PUBLIC SAFETY MANDATORY RETIREMENT EXCEPTION (29 U.S.C. § 623(j)):                              |
|   • State and local governments MAY establish mandatory retirement ages (e.g., age 57–65) or      |
|     maximum hiring ages (e.g., age 35) for FIREFIGHTERS and LAW ENFORCEMENT OFFICERS under a     |
|     bona fide retirement or hiring plan, provided it is not a subterfuge to evade the ADEA.       |
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[!NOTE] State Sovereign Immunity under ADEA: In Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), the Supreme Court held that Congress did not validly abrogate state sovereign immunity under the Eleventh Amendment for ADEA claims. Consequently, state government employees cannot recover monetary damages against state agencies in federal court under the ADEA (though state law equivalents usually allow it, and federal/municipal/county employees are not shielded by Eleventh Amendment immunity).

Older Workers Benefit Protection Act (OWBPA) Waiver Standards:

When a public agency conducts a Reduction in Force (RIF) or offers a voluntary early retirement incentive program, it frequently requests employees to sign severance agreements releasing all ADEA claims. Under the OWBPA (29 U.S.C. § 626(f)), an ADEA waiver is valid only if it is knowing and voluntary, meeting strict statutory criteria:

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2. Genetic Information Nondiscrimination Act of 2008 (GINA)

Title II of GINA (42 U.S.C. § 2000ff et seq.; 29 CFR Part 1635) protects applicants and public employees against discrimination based on genetic information in all employment decisions.

Scope of Genetic Information:

1. An individual's genetic tests (e.g., DNA tests for cancer predispositions);
2. The genetic tests of family members;
3. The manifestation of a disease or disorder in family members (Family Medical History);
4. Requests for, or receipt of, genetic services or participation in clinical research that includes genetic services by an individual or family member.

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|                         GINA COMPLIANCE & SAFE HARBOR WARNING                                     |
|                                                                                                   |
|   GENERAL PROHIBITION:                                                                            |
|   • Public agencies CANNOT request, require, purchase, or disclose genetic information.           |
|   • Inadvertent acquisition ("water cooler" conversations, overheard remarks) is NOT a violation.  |
|                                                 |                                                 |
|   MANDATORY SAFE HARBOR WARNING FOR MEDICAL REQUESTS (29 CFR § 1635.8(b)(1)(i)):                  |
|   When requesting medical information from an employee's healthcare provider (e.g., for ADA or    |
|   FMLA certifications), public HR must include the following statutory disclaimer:                |
|                                                                                                   |
|   "The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other     |
|    entities covered by GINA Title II from requesting or requiring genetic information of an       |
|    individual or family member of the individual... To comply with this law, we are asking that    |
|    you NOT provide any genetic information when responding to this request for medical            |
|    information."                                                                                  |
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3. Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

USERRA (38 U.S.C. §§ 4301–4335; 20 CFR Part 1002) is one of the most expansive employee protection statutes in American law, applying to all public employers (federal, state, local, regardless of size) and protecting individuals who perform service in the Uniformed Services (Army, Navy, Air Force, Marine Corps, Coast Guard, Space Force, Army/Air National Guard, Commissioned Corps of the Public Health Service, and disaster response teams).

The Escalator Principle (20 CFR § 1002.191):

Originally established in Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275 (1946), the Escalator Principle mandates that a returning service member must be restored to the employment position and status that they would have attained with reasonable certainty had they remained continuously employed rather than entering military service.

• The employee does not step back onto the escalator at the point they stepped off; they step on at the precise level the escalator reached during their absence.
• Includes automatic seniority step increases, across-the-board wage adjustments, promotional opportunities that depend on seniority or passing non-discretionary hurdles, and full continuous pension service credit upon reemployment.

Key Reemployment Deadlines Based on Service Duration:

• 1 to 30 Days of Service: Must report back to work at the beginning of the first full regularly scheduled work period on the first full calendar day following completion of service, safe transit home, and an 8-hour rest period.
• 31 to 180 Days of Service: Must submit an application for reemployment within 14 calendar days after completion of service.
• 181 or More Days of Service: Must submit an application for reemployment within 90 calendar days after completion of service.

Protection Against Discharge Without Cause:

To prevent employers from circumventing USERRA by reinstating a veteran and immediately firing them, USERRA establishes a statutory period of "for cause only" discharge protection:

• 180 Days Protection: For employees whose military service lasted between 31 and 180 days.
• 1 Full Year Protection: For employees whose military service lasted more than 180 days.

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4. Constitutional Tort Claims under 42 U.S.C. § 1983 in Public Employment

In addition to statutory claims, public sector HR leaders and supervisory officials face potential direct liability under Section 1983 of the Civil Rights Act of 1871 (42 U.S.C. § 1983). Section 1983 does not create substantive rights; rather, it provides a federal civil cause of action against any "person" who, under color of state or local law, deprives an individual of rights secured by the U.S. Constitution or federal statutes.

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|                         42 U.S.C. § 1983 LIABILITY ARCHITECTURE                                   |
|                                                                                                   |
|   MUNICIPAL / ENTITY LIABILITY                       INDIVIDUAL SUPERVISOR LIABILITY              |
|   (City, County, School District)                    (HR Directors, Managers, Chiefs)             |
|   +---------------------------------------+          +---------------------------------------+    |
|   | MONELL DOCTRINE (436 U.S. 658)        |          | PERSONAL CAPACITY SUITS               |    |
|   | • NO Respondeat Superior Liability.   |          | • Sued individually for damages.      |    |
|   | • Agency liable ONLY if violation was |          | • QUALIFIED IMMUNITY DEFENSE:         |    |
|   |   caused by an OFFICIAL POLICY,       |          |   Shields officials unless conduct    |    |
|   |   CUSTOM, or FINAL POLICYMAKER.       |          |   violated CLEARLY ESTABLISHED law    |    |
|   | • Failure to Train / Supervise        |          |   that a reasonable official would    |    |
|   |   (Deliberate Indifference Standard). |          |   have known (Harlow v. Fitzgerald).  |    |
|   | • No Punitive Damages against agency. |          | • Punitive Damages CAN be awarded.    |    |
|   +---------------------------------------+          +---------------------------------------+    |
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A. Municipal Liability under the Monell Doctrine

In Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), the Supreme Court held that municipalities and local government units are "persons" subject to suit under § 1983. However, the Court established that a local government cannot be held liable solely because it employs a tortfeasor (no vicarious respondeat superior liability).

To establish municipal liability under § 1983, a public employee plaintiff must prove that an unconstitutional action executed by an employee was directly caused by:

1. An Express Official Policy: Formal ordinances, civil service rules, or administrative regulations adopted by the governing body;
2. A Widespread, Permanent Custom or Practice: Persistent, well-settled practices that are so permanent as to constitute a custom with the force of law, known and tolerated by senior management;
3. Action by a Final Policymaker: An unconstitutional decision made by an official with final, non-reviewable policymaking authority in that specific subject matter area (Pembaur v. City of Cincinnati, 1986); or
4. Deliberate Indifference in Training/Supervision: In City of Canton v. Harris, 489 U.S. 378 (1989), the Court held that failure to train public employees constitutes an actionable municipal policy only where the failure amounts to deliberate indifference to the constitutional rights of persons with whom the employees come into contact.

B. Individual Liability and Qualified Immunity

When public HR officials or managers are sued in their individual capacities under § 1983, they can assert the defense of Qualified Immunity. Established in Harlow v. Fitzgerald, 457 U.S. 800 (1982) and refined in Pearson v. Callahan, 555 U.S. 223 (2009), qualified immunity shields government officials from personal liability for civil monetary damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

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|                         QUALIFIED IMMUNITY TWO-PRONG INQUIRY                                      |
|                                                                                                   |
|   PRONG 1: CONSTITUTIONAL VIOLATION?                                                              |
|   - Do the facts alleged show that the official's conduct violated a constitutional or            |
|     statutory right?                                                                              |
|                                                 |                                                 |
|   PRONG 2: CLEARLY ESTABLISHED LAW?                                                               |
|   - Was the right "clearly established" at the time of the misconduct, such that every            |
|     reasonable public official in that position would understand that what they were doing        |
|     violated that right?                                                                          |
|                                                                                                   |
|   *If EITHER prong fails, the public official is granted immunity and dismissed from the suit.     |
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