Guidance on the Scope of Available Remedies under the Age Discrimination in Employment Act (ADEA) for a Violation Committed by a Labor Organization

EEOC Notice, N-915.053, May 11, 1989.

1. SUBJECT: Policy Guidance: The Scope of Available Remedies Under the Age Discrimination in Employment Act (ADEA) when a Violation is Committed by a Labor Organization.
2. PURPOSE: This issuance provides guidance on the scope of remedies available against a labor organization that has committed a violation of the ADEA.
3. EFFECTIVE DATE: Upon Receipt.
4. EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B, Attachment 4, §a(5), this Notice will remain in effect until rescinded or superseded.
5. ORIGINATOR: ADEA Division, Office of Legal Counsel.
6. INSTRUCTIONS: File after the last Policy Guidance in the 800 series of Vol. II of the Compliance Manual.
7. SUBJECT MATTER:

Introduction

The Age Discrimination in Employment Act combines elements of both Title VII and the Fair Labor Standards Act of 1938 (FLSA). The substantive provisions of the ADEA were derived in haec verba from Title VII, while the procedural provisions were patterned in accordance with the powers, remedies and procedures of the FLSA. Lorillard v. Pons, 434 U.S. 575, 580, 584 (1978).

Under Title VII, labor organizations acting in the capacity of labor organization can be held liable, as appropriate, for the full range of legal and equitable remedies available under the Act. [1] While there are only a few ADEA cases addressing this issue, the courts are split on whether labor organizations, which have violated the ADEA while acting in the capacity of labor organization [2], can be held liable for monetary damages, such as backpay. Certain courts, relying upon the FLSA provisions incorporated into the ADEA, have held that only injunctive relief is available.

Based upon the intent and purposes of the ADEA, the legislative history, and the specific ADEA provisions authorizing courts to grant “such legal and equitable relief as may be appropriate to effectuate the purposes of the Act,” the Commission's position is that labor organizations violating the ADEA in the capacity of labor organization can be held liable, as appropriate, for the full range of legal and equitable remedies available under the ADEA.

Discussion

The statutory provisions of the ADEA clearly prohibit labor organizations [3] from discriminating on the basis of age. Section 4(c) of the ADEA provides that:

It shall be unlawful for a labor organization—

(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;

(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual's age;

(3) to cause or attempt to cause an employee to discriminate against an individual in violation of this section.

29 U.S.C. §623(c). In addition, section 4(d) prohibits retaliation, and section 4(e) prohibits the printing or publishing of age discriminatory notices or advertisements by labor organizations. 29 U.S.C. §§623(d) and (e).

Section 7(b) of the ADEA provides in pertinent part that:

The provisions of this Act shall be enforced in accordance with the powers, remedies, and procedures provided in sections 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended, … and subsection (c) of this section…. Amounts owing to a person as a result of a violation of this Act shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 16 and 17 of the Fair Labor Standards Act of 1938, as amended…. In any action brought to enforce this Act the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for the amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. §626(b).

In analyzing whether a union may be held liable to one of its members for lost wages under the ADEA, some courts have looked to whether a union would have such liability under the FLSA. Noting that under section 16(b) of the FLSA, 29 U.S.C. §216(b), employees may bring a civil action against an “employer” to recover monetary damages, and that the term “employer”, defined in §203(d) of the FLSA [4], expressly excludes labor organizations, certain courts have concluded that a monetary damage award against a union is precluded under the ADEA. See, e.g., Air Line Pilots Ass'n v. Trans World Airlines, 713 F.2d 940, 957 (2d Cir. 1983), aff'd in part and rev'd in part on other grounds sub nom. TWA v. Thurston, 469 U.S. 111 (1985) ; Neuman v. Northwest Airlines, 29 EPD §32,760 (N.D. Ill. 1982). Thus, in these courts only injunctive relief can be obtained against labor organizations.

Other courts have rejected this analytic approach, noting that after §626(b) of the ADEA references the FLSA, it further provides that “the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act.” Concluding that it would not effectuate the purposes of the Act to allow labor organizations to violate the ADEA without having to be concerned about being held liable for any resulting monetary damages, these courts have stated that labor organizations can be held liable for monetary damages. See, e.g., EEOC v. Air Line Pilots Ass'n, 489 F. Supp. 1003, 1009 (D. Minn. 1980), rev'd on other grounds, 661 F.2d 90 (8th Cir. 1981) ; Boieru v. Cuyahoga County Library Union, 46 EPD ¶38,059 (N.D. Ohio 1988). [5]

The legislative history of the ADEA does not conclusively resolve the question of the scope of the remedies available against a labor organization. However, the legislative history strongly suggests that “the aspects of the [ADEA] suggestive of a Congressional intent to bar union liability were the result, not of purposeful considerations of the merits of liability, but of practical concerns for administration of the Act as a whole.” See Comment, Union Liability Under the Age Discrimination in Employment Act, 56 U. Chi. L. Rev. 1087, 1091 (1969) (hereinafter Comment, Union Liability).

The legislative history contains numerous references to the advantages of using an already established agency to administer and enforce the ADEA, as well as to the benefits of vesting enforcement power in the courts, as compared to agency level adjudication. As stated by Senator Javits:

It is important, needless to say, that any Federal age discrimination law be administered as efficiently as possible. At the same time, all parties concerned must be guaranteed a prompt and fair hearing on the many difficult questions which are sure to arise under the law.

I believe that the most effective way of accomplishing these objectives is to utilize the Administrator of the Wage and Hour Division of the Labor Department to administer and enforce the Act. This is the approach utilized in my bill S.788…. The Wage-Hour office is an existing, nationwide structure into which the functions of enforcement of the age discrimination law could easily be integrated. Here is a ready-made system of regional directors, attorneys and investigators, which has vast experience in making periodic investigations similar to those which would be required under the age discrimination law.

The Administration's bill, on the other hand, would require the establishment of a wholly new and separate bureaucracy within the Labor Department, replate with regional directors, attorneys and investigators, as well as trial examiners. Aside from the needless duplication of functions involved, one result of the Administration's approach will surely be the same delays which plague so many of our agencies, such as the EEOC and the NLRS…. Such delay is always unfortunate, but it is particularly so in the case of older citizens to whom, by definition, relatively few productive years are left. By utilizing the courts rather than a bureaucracy within the Labor Department as the forum to hear cases arising under the law, these delays may be largely avoided.

Age Discrimination in Employment Act of 1967, Hearings on S. 830 and S. 788 before Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess. 24 (1967) (hereinafter Senate Hearings); see also, e.g., id. at 323-24 (National Association of Manufacturer's statement expressing concern over adjudicatory and prosecutorial functions being vested in the same agency and endorsing FLSA court enforcement mechanism by established agency). The agency level adjudication approach, envisioning an administrative hearing followed by appellate court review, was eventually rejected in favor of court enforcement pursuant to FLSA procedures. See S. Rep. No. 723, 90th Cong., 1st Sess. 5 (1967); H.R. Rep. No. 805, 90th Cong., 1st Sess. 5 (1967).

The legislative history strongly indicates that Congress' reasons for incorporating FLSA enforcement procedures into the ADEA were not based upon an analysis of any substantive purpose or limitations underlying the FLSA remedial provisions, but rather upon administrative ease and efficiency. By fitting the ADEA into the FLSA mode, Congress could utilize an established, experienced bureaucracy, and better ensure the prompt and effective enforcement of the Act.

Secretary of Labor, W. Willard Wirtz, testifying in favor of the Administration's version of the bill providing for administrative agency level adjudication, but containing similar substantive prohibitions against discrimination by labor organizations, expressly stated that labor organizations could be held liable for backpay. See Age Discrimination in Employment, Hearings on H.R. 3651. H.R. 3768, and H.R. 4221 before the House Committee on Education and Labor, General Subcommittee on Labor, 90th Cong., 1st Sess. 12 (1967) (hereinafter House Hearings). The unequivocal statutory prohibition against age discrimination by labor organizations eventually enacted implies that Congress considered union discrimination to be part of the problem. Congress clearly was not swayed by the testimony of various union officials, who stated that unions had been in the forefront combatting age discrimination, and urged that the provisions of the bill applicable to labor organizations be deleted as unnecessary. See, e.g., Senate Hearings at 97-98 (statement by Andrew J. Biemiller, Legislative Director of the AFL-CIO).

In addition to the legislative history of the ADEA, the broader remedial language of the ADEA must be taken into account. The ADEA enforcement section contains a provision not included in the FLSA, to wit:

In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section.

29 U.S.C. §626(b).

By including this broad language, Congress obviously intended some modification to FLSA remedies and procedures. See Lorillard, 434 U.S. at 581 (stating that by including the above cited provision, Congress made clear its intent to allow private individuals to seek injunctive relief under the ADEA, a remedy not available under the FLSA). “The manifest purpose of this broad grant of legal and equitable power is to enable the courts to fashion whatever remedy is required to fully compensate an employee for the economic injury sustained by him.” Kovel v. Consolidated Edison, 560 F. Supp. 1161, 1168 (S.D.N.Y. 1983) (analysis supporting the granting of front pay under the ADEA despite lack of a similar remedy under the FLSA).

From the inclusion of this broad language, it can be inferred that Congress recognized that the remedial provisions of the FLSA were not perfectly suited to the age discrimination context, and thus gave the courts discretion to fashion appropriate relief beyond the explicit dictates of the FLSA. [6] See S. Rep. No. 723, 90th Cong., 1st Sess. 15-16 (1967) (Individual views of Mr. Javits) (noting that the enforcement provisions of the FLSA had been incorporated in the bill, “with appropriate modifications necessary to accommodate them to the purposes of this legislation”).

Failure to hold a labor organization liable for monetary damages will undercut the ADEA's goal of eliminating arbitrary age discrimination in employment. Injunctive remedies, operating alone, are an insufficient deterrent to age discrimination in that past acts of discrimination are left unremedied. In order to fully effectuate-the purposes and goals of the ADEA, labor organizations should be held liable, as appropriate, for the full range of legal and equitable remedies available under the ADEA. [7]

Accordingly, based upon the legislative history of the ADEA, the ADEA provision authorizing “such legal and equitable relief as may be appropriate to effectuate the purposes of the Act,” and the intent and objectives of the ADEA, the Commission's view is that labor organizations violating the ADEA in the capacity of labor organization can be held liable, as appropriate, for the full range of legal and equitable remedies available under the Act. [8]

Case Resolution

When processing ADEA charges in which labor organizations are named as respondents and a cause finding issues, the Commission may seek from the labor organization the full range of legal and equitable remedies available under the Act, as appropriate in light of the particular facts of the charge, in order to make the charging party whole. [9]

Date: 5-11-90

Evan J. Kemp, Jr.

Chairman

Footnotes

1. Section 706(g) of Title VII contains an express provision making labor organizations liable for backpay. 29 U.S.C. §2000e-5(g). See, e.g., Ingram v. Madison Square Garden Center, 709 F.2d 807 (2d Cir.), cert. denied, 464 U.S. 937 (1983) (backpay award against union under Title VII); Parson v. Kaiser Aluminum & Chemical Corp., 583 F.2d 132 (5th Cir. 1978), cert, denied, 441 U.S. 968 (1979) (backpay award against union under Title VII).
2. The statutory provisions are clear that labor organizations acting in the capacity of employer can be held liable for the full range of remedies available under the ADEA, like any other employer. See 29 U.S.C. §§203(d) ; 216(b) ; 626(b).
3. See sections 11(d) and (e) of the ADEA, 29 U.S.C. §§630(d) and (e), for definition of the term "labor organization."
4. Section 16(b) of the FLSA, in pertinent part, provides as follows:
   
   Any employer who violates the provisions of section 6 or section 7 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount of liquidated damages…. The court in such action shall, in addition to any judgment awarded to the plaintiff …, allow a reasonable attorney's fee to be paid by the defendant….
   
   29 U.S.C. §216(b).
   
   Section 3(d) of the FLSA provides as follows:
   
   "Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of such labor organization.29 U.S.C. §203(d).
5. See also Hodgson v. Sagner, 326 F. Supp. 371 (D. Md. 1971), ff'd sub nom. Hodgson v. Baltimore Regional Joint Board, 462 F.2d 180 (4th Cir. 1972) (Equal Pay Act (EPA) suit, enforced pursuant to FLSA procedures, in which court found union to be jointly and severally liable with employer for backpay based upon the court's general equitable powers pursuant to statutory prohibition against union discrimination, despite lack of express statutory basis for ordering this type of relief against the union); but compare, e.g., Lyon v. Temple Univ., 507 F.Supp. 471, 474-75 (E.D. Penn. 1981) (union cannot be held liable for monetary relief under EPA because §216(b) of FLSA only authorizes such suits against employers).
6. The original purposes and context of the FLSA differ significantly from those of the ADEA. The intent of the FLSA was to guarantee a living wage and decent working conditions to those workers who did not have the ability to organize and obtain minimum wages and maximum hours through collective bargaining. See S. Rep. No. 884, 75th Cong., 1st Sess. (1937).

Unions possessed limited power during this period, and only a small percentage of the work force was covered by collective bargaining agreements. See Fair Labor Standards Act of 1937, Joint Hearings on S. 2475 and H.R. 7200 before the Committee on Education and Labor, U.S. Senate, and the Committee on Labor, House of Representatives, 75th Cong., 1st Sess. (1937) (remarks of Rep. Keller at 21); Comment, Union Liability at 1094-96. The FLSA was clearly aimed at imposing certain basic requirements on employers. Those requirements were not directly applicable to labor organizations acting in the capacity of labor organization (as opposed to employer), and thus, it is not surprising that the legislation did not focus on union liability.

7. Unions can be held monetarily liable for age discriminatory acts pursuant to the duty of fair representation under the National Labor Relations Act (NLRA). See Comment, Union Liability at 1109-1110. As noted by the commentator, the ability to obtain monetary relief against unions pursuant to the NLRA, but not under the ADEA, could lead aggrieved parties to bypass the ADEA enforcement mechanism, which was intended to encourage conciliation and administrative resolution of age discrimination claims. Id.
8. The foregoing analysis also supports the granting of attorneys' fees to prevailing parties against defendant labor organizations in ADEA cases. See Ingram, 709 F.2d at 813-14. (Title VII case in which attorneys' fees were awarded against union).
9. Depending upon the facts of the charge, a labor organization may be the only named respondent, or commonly, may be named along with the employer. While a detailed discussion of the apportionment of liability between labor organization and employer is beyond the scope of this issuance, "the attribution of liability and the apportionment of damages between employer and union [has been approached] on a flexible basis with regard to the comparative equities…." Parson, 583 F.2d at 133-134. See also Bowen v. U.S. Postal Service, 459 U.S. 212 (1983) (discussing apportionment of damages between labor organization and employer in duty of fair representation case).