Lesson 19 Age Discrimination

AGE EMPLOYMENT DISCRIMINATION DISCRIMINATION LAW

Overview of ADEA

  • Age Discrimination in Employment Act (ADEA): Prohibits discrimination against employees or job applicants aged 40 and older.

  • Unemployment Statistics: Older workers face longer periods of unemployment compared to younger workers.

  • EEOC Discrimination Charge Statistics: Approximately 23% of all discrimination charges pertain to age discrimination.

Legislative History

  • Enactment: ADEA was established in 1967; not part of Title VII.

  • Relation to FLSA: ADEA is integrated with the Fair Labor Standards Act (FLSA).

  • Employer Applicability: Applies to employers with 20 or more employees.

  • Damages: Successful plaintiffs may recover liquidated damages (double back wages) for willful violations.

Relationship between ADEA & Title VII

  • Prohibitions: Similar to Title VII, the ADEA prohibits discrimination in hiring, discharge, promotion, and other employment conditions.

  • Evidentiary Standards: ADEA litigation often follows the same approach as Title VII in evidentiary proof.

Key Differences between ADEA and Title VII

  • Favoritism: ADEA allows employers to favor older employees over younger ones, unlike Title VII, which recognizes reverse discrimination claims.

  • State Laws: Certain state laws may allow for age discrimination claims by younger individuals; Texas does not support this.

Gross v. FBL Financial Services, Inc.

  • Case Overview: Involves a mixed motives case regarding age discrimination.

  • Proof Requirement: ADEA plaintiffs must prove age was the “but for” cause of employment decisions.

  • Dissenting Opinion: Explores the burden of proof for defendants in age discrimination cases.

Civil Rights Act of 1991

  • Establishes criteria for defining unlawful employment practices based on race, color, religion, sex, or national origin.

Proving ADEA Claims

  • Case Outcomes: After Gross, courts maintained using the McDonnell-Douglas test for ADEA claims.

  • Age-Proxy Theory: Prior to Hazen Paper, some courts suggested presumption of age discrimination based on age-correlated factors.

Hazen Paper Co. v. Biggins

  • Disparate Treatment Claim: Age must be the “but-for” cause; decisions based on other factors are not age discrimination claims.

  • Pension Status Defense: Firing an employee to prevent pension benefits from vesting violates ERISA, not ADEA.

O'Connor v. Consolidated Coin Caterers Corp.

  • Replacement's Age: The Supreme Court established that age discrimination cases may consider whether replacements are “substantially younger.”

  • Substantially Younger Definition: Age difference of less than ten years generally isn’t significant for prima facie case.

ADEA Prima Facie Case Elements


    1. Plaintiff is a member of the protected class.


    1. Plaintiff is qualified for the position.


    1. Plaintiff suffered an adverse employment action.


    1. Circumstances give rise to an inference of age discrimination.

Case Illustrations of Age Discrimination

  • Stray Remarks: Alone, cannot establish discrimination (e.g., comments by a prison warden).

  • Reeves v. Sanderson Plumbing: Highlights ageist remarks and wrongful termination of an older employee.

  • Earl v. Nielsen Media Research: Claims of age discrimination supported by evidence of lenient treatment of younger employees.

Disparate Impact in Age Discrimination

  • Smith v. City of Jackson: Workers 40 and older can claim discrimination using a disparate impact theory.

  • Claims no longer require proving intent to discriminate, just that the practice adversely affects older employees.

Compulsory Retirement and Early Retirement

  • Lawfulness: Employers cannot force retirement due to age; early retirement must be voluntary.

  • Mandatory Retirement Exemption: Exists for certain high-level employees meeting specific criteria.

Releases and Waivers under ADEA

  • Release Agreement: Can prevent discrimination lawsuits if entered knowingly and voluntarily based on totality of circumstances.

  • OWBPA Requirements: Seven specific elements for validity of waivers are mandated under the ADEA.

Reductions in Force (RIF)

  • Layoff Concerns: Older employees may be more likely affected during business declines.

  • RIF Structure for Employee Releases: Modified guidelines for releases during RIFs, extending consideration times and disclosure requirements.

Examples from Case Law

  • Rowan v. Lockheed Martin Energy: Manager’s comments alone not enough for discrimination claim; supporting explanations dismissed.

  • Overall, employers may not discriminate based on age, even while conducting layoffs.