Age Discrimination In Employment Act
Of 1967
• 29 U.S.C. Sec. 623(a)(1): “It shall be unlawful for an
employer . . . to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any
individual . . . because of such individual’s age . . .”
• Sec. 623(a)(2): “to limit, segregate, or classify his
employees in any way which would deprive or tend
to deprive any individual of employment
opportunities or otherwise adversely affect his status
as an employee, because of such individual’s age . . .”
The ADEA
• 29 U.S.C. Sec. 631(a): “The prohibitions in this
Act shall be limited to individuals who are at
least 40 years of age.”
• Sec. 630(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 preceding or current
calendar year . . .”
The ADEA
• O’Connor v. Consolidated Coin Caterers Corp.
(U.S. 1996)
▫ Prima facie case elements
• Court: “the fact that an ADEA plaintiff was
replaced by someone outside the protected class
is not a proper element of the McDonnell
Douglas prima facie case.”
• The “fact that a replacement is substantially
younger than the plaintiff is a far more reliable
indicator of age discrimination . . .”
The ADEA
• General Dynamics Land Systems, Inc. v. Cline
(U.S. 2004)
▫ Facts; issue
• The ADEA’s prohibition of discrimination
“because of [an] individual’s age”
• Cline’s and the EEOC’s arguments
• Court: the text, structure, purpose, and history
of the ADEA show “that the statute does not
mean to stop an employer from favoring an
older employee over a young one.”
Cline (cont.)
• Justice Scalia’s dissent
• Justice Thomas’s dissent
▫ The plain language of the statute permits a lawsuit
for discrimination in favor of older workers
▫ Discrimination because of age is not restricted to
discrimination because of relatively older age
▫ The meaning of “age”
▫ The EEOC’s interpretation is “consistent with the
best reading of the statute”
• Persuaded by majority or dissent?
The ADEA
• Gross v. FBL Financial Services, Inc. (U.S.
2009)
▫ Facts; issue presented in the granted writ of
certiorari
• Issue: does the burden of persuasion ever shift
to the defendant in a mixed-motives claim
brought under the ADEA?
• Court: unlike Title VII, the text of the ADEA
does not provide that age as a motivating factor
establishes discrimination
Gross (cont.)
• In the Civil Rights Act of 1991 Congress
amended Title VII but not the pertinent sections
of the ADEA
• “Because of” means “by reason of: on account
of”’ age must be the “reason” the employer acted
• The ADEA thus requires that the plaintiff prove
that age was the but-for cause of the adverse
employment action
• Price Waterhouse is not controlling
Gross (cont.)
• Justice Stevens: the Court decides an issue not
posed in the grant of certiorari and not briefed
by the parties, amici curiae, or the United States
• The Court interprets “because of” in Title VII
and the ADEA differently
• Price Waterhouse’s construction of “because of”
remained the law and should govern ADEA
claims