Chapter 12
Age Discrimination
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Learning Objectives (1)
 Distinguish the perception of older workers from
the reality of their impact in the workplace
 Describe the history of protecting older workers
in the United States, and its conflicting goals
 Distinguish the ADEA and state-based age
discrimination laws
 Identify the legal options available to an
employee who believes that he or she is a victim
of age discrimination
12-2
Learning Objectives (2)
 Explain the prima facie case of discrimination
based on age
 Describe the bona fide occupational qualification
defenses available to employers under the
ADEA
 Distinguish circumstances where disparate
impact and disparate treatment apply in
connection with age discrimination
12-3
Learning Objectives (3)
 Analyze factual circumstances when employer
economic concerns may justify adverse action
against particular groups of workers
 Recognize necessary elements to establish
pretext under the ADEA.
 Define the parameters of a valid waiver of ADEA
rights
12-4
Age Discrimination Context (1)
 American, other cultures value youth
 Perceptions of older workers may not match
evidence: reliability, effort, attendance
 Tech industry in particular faces challenges to its
ageist culture
 Zuckerberg quote, Google settlement
 55+ workforce grew from 12-22% from 19922012; projected to be 26% by 2022
12-5
Age Discrimination Context
(2)
 Trend for workers to remain employed longer, for
economic and cultural reasons
 Talent retention and utilization challenges
 Research suggests experience may be undervalued asset
 Generalizing/stereotyping constitutes wrongful
discrimination
 Essence of anti-discrimination law is individualized
consideration
12-6
Realities about Older Workers and Age
Discrimination
 In RiFs, employers need to be cognizant of the
impact of terminations based on salary, since
older workers may be higher paid (per seniority)
 There is no ‘reverse discrimination’ cause of
action available to younger workers ineligible
because of minimum-age restrictions
 Most mandatory retirement ages (e.g., 65) have
been eliminated in U.S. economy
12-7
What is Same/Different about Age?
 Same
 Broad inclusion in protected group: everyone lucky
enough to reach 40 years of age can qualify
 Different
 Aging process: sooner or later, every worker is no
longer ‘qualified’ for the job
 ‘older’ workers still under 40 are not protected
12-8
Conflicting Goals of Age Discrimination
Protection
 Death of a Salesman Theory: oldsters need
protection as their skills decline
 “you can’t just eat the orange and then throw away
the rind. A man is not an orange!”
 Individualized Consideration Theory
 Given the prejudice in this culture against seniors,
they need to be assured of individualized decisionmaking, which does not include their age as an jobrelated criterion. (just like Title VII)
12-9
Regulation: Age Discrimination in
Employment Act (ADEA)
 ADEA enacted several years post-Civil Rights
Act
 Stands-alone vs. addition to Title VII coverage
 Prohibits discrimination in employment on the
basis of age > 40
 Applies to individuals who are at least 40 years
old, with no upper age limit
12-10
Distinctions between ADEA and Title VII
 The ADEA is more lenient than Title VII
regarding employer’s reason for adverse
employment decisions
 “reasonable factor other than age” defense
 An employee is not barred from pursuing a claim
simply because the employer treated another
age-protected worker better
 e.g. both workers may be > 40, age gap preferred
12-11
Distinctions between ADEA and Title VII
 ADEA only protects employees over 40 from
discrimination
 Discrimination against thirty-somethings not covered
 To ensure appropriate and adequate information
exists as to hiring practices in connection with
age, ADEA has specific record-keeping
provisions for employers
 Some state workers cannot sue their employers,
unless state has waived ‘sovereign immunity’
12-12
Employee’s Options
 Internal: employee may file a complaint using
the employer’s internal grievance procedures
 EEOC/state filings: claim flied with agency within
applicable statute of limitations periods
 Internal grievance process does not ‘toll’ (suspend)
the running of the statutory period
 Lawsuit: ADEA-based lawsuit may be filed any
time after 60 days from filing claim
 Notice of Right-to-Sue not required
 http://www.eeoc.gov/employees/lawsuit.cfm
12-15
Employee’s Prima Facie Case:
Disparate Treatment (1)
 Member of a protected class
 40 years or older
 Qualified for the position: Able to meet the
employer’s legitimate job requirements
 Adverse employment action: Any action or
omission that takes away a significant benefit,
opportunity, or privilege of employment from an
employee (re hiring, promotion, termination etc.)
12-16
Employee’s Prima Facie Case:
Disparate Treatment (2)
 Dissimilar treatment
 Treated differently from others not in the protected
class
 Burden on Claimant to establish absence of
“Reasonable Factor Other than Age” (RFOA)
 contrast Title VII, where defendant must establish legitimate nondiscriminatory motivation
 In mixed motive cases, “but-for” age discrimination, adverse
action would not have been taken
 See Gross case – next slide
12-17
Burden Shifting No More: Gross
 Case: Gross v. FBL Financial Services. Inc.
 No burden shifting occurs in ADEA cases: plaintiff
must prove age was the ‘but-for’ factor
 Thus mixed-motives claims do not exist under the
ADEA in disparate treatment cases
 Burden shifting, mixed-motives coverage still applies
to Title VII cases
 Majority reasons that Title VII had been amended, but ADEA
had not; dissent not convinced
12-18
Employer Defenses
 Bona Fide Occupational Qualification
 More broadly applicable in age cases
 EEOC guidelines for employers in ADEA cases:
 The age limit is reasonably necessary to the essence of the
employer’s business
 All or substantially all of the individuals over that age are
unable to perform the job’s requirements adequately
 Some of the individuals over the age possess a disqualifying
trait that cannot be ascertained except by reference to age
 Case: Western Airlines v. Criswell
12-19
Mandatory Retirements
 Mandatory retirement: Employee must retire
upon reaching a specified age
 Mostly illegal per 1986 amendments to the ADEA
 Limited to certain execs and first responders
 Employer cannot base employment decisions on
age-related stereotypes
12-20
Proving a Case of Age Discrimination
Disparate Treatment
Step 1: Employee’s prima facie case
• The employee is in the protected class
• She or he was terminated or demoted
• Employee met employer’s legitimate expectations
• Others not in the protected class were treated more favorably
• Age is ‘but-for’ factor in employer’s decision
Step 2: Employer defenses
• BFOQ, seniority or ‘just cause’
Step 3: Employee may claim ‘pretext’ for employer actions
12-21
Proving a Case of Age Discrimination
Disparate Impact
Step 1: Employee’s prima facie case
• A facially neutral policy or rule is imposed by an employer
• Which has a different effect on an older group of workers
• No intent to discriminate is necessary
Step 1: Employer defenses
• Reasonable factor other than age (RFOA)
• Economic concerns
• Seniority
12-22
Employee’s Prima Facie Case: Disparate
Impact (1)
 Reasonable factors other than age: May
include any requirement that does not have an
adverse impact on older workers, as well as
those factors that do adversely affect this
protected class but are shown to be job-related
 There is no RFOA defense in Title VII
 Cases
 Schuster v. Lucent Technologies
 Hazen Paper v. Biggins (pre-Gross disp. treatment)
12-23
Employee’s Prima Facie Case: Disparate
Impact (2)
 RFOA and economic concerns, per EEOC
 Relationship of Factor to business purpose
 Factor well-defined, fairly applied (training?)
 Limits on supervisors’ subjective discretion
 Assessment of effect on older workers
 Harm: extent, breadth and amelioration tactics
 RFOA standard < Title VII ‘business necessity’
12-24
Defenses Based on Benefit Plans and
Seniority Systems
 ADEA specifically excludes bona fide retirement
options that distinguish based on age
 Are not a “subterfuge”
 Bona fide voluntary retirement options must be
truly voluntary
 ‘Reasonable person’ would not feel compelled to
retire
12-25
“Same Actor” Defense
 Same “actor” both hires and fires a worker –
permissible inference that the employee’s age
was not a motivating factor in the decision
 ADEA, not Title VII
12-26
Retaliation
 ADEA prohibits retaliation
 Punitive damages: award designed to punish
the party being sued rather than compensate the
injured party
 Can be quite high, especially if the actions are
especially offensive, the defendant is a large
company, and/or the jury is angry
 Available for retaliation, but not routine claims under
ADEA
12-27
Employee’s Response: ‘Pretext’
 Where there is direct evidence of discrimination,
proof of pretext is not required
 Showing pretext (similar to Title VII):
 Offered reasons for the adverse employment action
have no basis in fact
 Offered reasons did not actually motivate the adverse
employment action
 Offered reasons are insufficient to motivate the
adverse action taken
12-28
Employee’s ADEA Prima Facie Case:
Harassment Based on Age
 Recognized in most, but not all federal appellate
circuits
 The employer is 40 years or older
 Harassment ‘unwelcome’ (most circuits)
 The employee was harassed, through words or
actions, based on age
 Unreasonable interference with job performance
 Basis for ascribing employer liability
12-29
Waivers under the Older Workers’ Benefit
Protection Act of 1990
 Waiver: The intentional relinquishment of a
known right
 Concerns legality and enforceability of early
retirement incentive programs and waivers of
rights under the ADEA
 Every waiver must be knowing and voluntary
12-30
Waivers under the Older Workers’ Benefit
Protection Act of 1990
 Waiver may not bar the employee from filing a
claim with the EEOC
 If employee signs a defective waiver, the
employee is not required to give back any
benefits received under the waiver as precondition to filing suit
 Case: Oubre v. Entergy Operations
 Provisions in connection with early retirement
plans
12-31
The Use of Statistical Evidence
 Generally more useful in Disparate Impact cases
 Skepticism relating to statistical evidence in age
discrimination cases due to normal attrition in
the workforce
 Supreme Court guidelines
 2 -3 standard deviation variability is ‘suspect’
 Context crucial: all surrounding facts and
circumstances are considered
12-32
ADEA Remedies
 Money damages: back pay and front pay
 Liquidated damages: predetermined amount of
damages, here unpaid wage liability
 Equitable relief: Relief that is not in the form of
money damages, such as injunctions,
reinstatement, and promotion
 Limited under ADEA where monetary damages
ascertainable, and suffice to compensate victim
12-33
Employee Retirement Income Security
Act (ERISA)
 Regulates private employee benefit plans,
including pensions
 Protects employees from wrongful denial of all
types of benefits
 No denial based on employee age > 21
 See ERISA coverage infra, Chapter 16
12-34
Management Considerations
 Employers should:
 Evaluate the true requirements of a position
 Take care to include them in job descriptions
 Test for those characteristics
 Pay attention to the basis for decision making and
selection in connection with training and development
opportunities
12-35
Management Considerations (1)
 Problems with RiFs:
 Employers generally do not retain intricate written
analyses of performance
 Managers and supervisors will likely evaluate an
employee as compared to other employees
 The employer may make a decision based on some
factor other than performance
 Be sure all employees periodically receive an
objective, detailed, documented performance
appraisals
12-36
Management Tips (1)
 Any job requirement on the basis of age must be
subject to your highest scrutiny
 Review all termination decisions carefully in order to
ensure fair procedures, balanced across workforce
 Terminating an older worker and replacing her or
him with another worker who is over 40 does not
protect you from a charge of age discrimination
 Review all recruiting literature to remove all agebased classifications
12-37
Management Tips (2)
 You may not terminate an older worker on the
basis of age
 Employers should neither encourage nor permit
age-based remarks, comments, or jokes to avoid
liability under the ADEA for age-related
harassment
 Employers should be sensitive about the
inclination in the past to single out workers over
40 for medical exams
12-38