CLASS EIGHT-THE AGE
DISCRIMINATION IN EMPLOYMENT
ACT
AGE DISCRIMINATION IN EMPLOYMENT (ADEA)
• Age Discrimination in Employment Act of 1967 –
Covers all aspects of workplace discrimination such
as: hiring assignments, promotions, work
environment and discharge
• Age Discrimination Act of 1975 – Applies to
employers that receive federal grants or assistance.
• Federal age discrimination law covers workers 40 and
over. State laws cover people as young as 18. Federal
law does not protect against reverse age
discrimination, but some state laws do provide this
type of protection.
How The ADEA Works
• The ADEA does more than protect people over 40 from
discrimination in favor of people under 40. For example, if an
employer, by reason of ageism, denies a promotion to a
qualified 55-year old and gives the job to a 45-year old, there
is unlawful age discrimination.
• Age discrimination is relatively easy to prove where there is a
blatantly ageist remark by a decision maker, but age
discrimination is usually subtle rather than blatant. Moreover,
where the same person who hired the older worker makes a
decision to discharge him, the action is less likely to lead to an
inference of age discrimination. Nieto v. L & H Packing Co.,
108 F.3d 621 (5th Cir. 1997).
COVERAGE UNDER THE ADEA
Who is covered (and not covered):
• Employers, employment agencies and labor
organizations are covered (29 USCA §623(a) – (c))
• Supervisory personnel in individual capacity –
Majority of federal courts have held that ADEA
provides no basis for relief against supervisory
personnel in their individual capacities unless
otherwise qualifies as “employer” under the statute.
PROVING AN AGE DISCRIMINATION CLAIMSlide 1
Elements of prima facie case – Disparate
Treatment, using preponderance of
evidence standard:
1) Plaintiff discharged or suffered an adverse employment
action
2) Plaintiff within protected group (age 40 or older) at time of
discharge or adverse employment action
3) Plaintiff qualified to do job from which he or she was
discharged or in which he or she was adversely affected
4) Plaintiff replaced by someone outside protected class and
replaced by someone younger (or otherwise show that
he/she discharged or suffered adverse effects based on
age).
PROVING A DISCRIMINATION CASE-Slide 2
Elements of a prima facie case based on a
reduction in force – courts use different
Standards
• Plaintiff must show that discharge or layoff had a specific
impact on workers within their protected age group, as
compared with younger workers by showing:
1) Plaintiff was discharged or laid off
2) Plaintiff was within ADEA’s protected class at
time
of discharge or layoff
3) Plaintiff qualified to assume other position
4) Circumstantial or direct evidence leads a fact finder to
reasonably conclude that employer intended to engage in age
discrimination in discharging or laying off plaintiff.
PROVING A DISCRIMINATION CASE-Slide 3
Elements of a prima facie case for hostile
work environment – Employer is liable for
the actions of a supervisor towards an older
employee if those actions are considered to
be harassment.
Standards for hostile work environment
claim:
• Plaintiff must be at least 40 years of age
• Harassment must be age related
• Harassment must be unwelcome
• Harassment must affect a term or condition of employment, and
• Employer knows, or should know about harassment and fails to
take prompt, effective action.
EMPLOYER’S BURDEN OF PROOF IN ADEA
CASES
An employer can defend an adverse employment decision taken
against an older worker if it can show that it was based on
reasonable factors other than age. For example, it is lawful for
an employer to enact a reduction in force based on a need to
eliminate higher salaried positions; in other words, it is lawful
to make decisions based on economic factors, even though a
disproportionate number of higher salaried employees are
older. DiCola v. SwissRe Holding, 996 F.2d 30 (2d Cir. 1993).
Although it is not advisable for an employer to tell a
prospective employee he is “overqualified,” one employer got
away with doing so. See EEOC v. Ins. Co. of North America, 49
F.3d 1418 (9th Cir. 1995).
PRETEXT IN ADEA CASES
Once employer rebuts presumption of
discrimination, the burden of persuasion
falls back on plaintiff to show that reasons
articulated by employer are not true, or
constitute a pretext for discrimination.
Employers’ conduct is considered to be a
pretext if that conduct is:
• Arbitrary, capricious, or nonsensical
• Jokes or insults aimed at a person’s age
• Comments made are close in time to the adverse event
Disparate Impact Theory
• In Smith v. City of Jackson, 544 US 228 (2005), the Supreme
Court held that the disparate impact theory was available in
age discrimination cases. A police department had an
incentive pay plan designed to bring salaries of police officers
up to the regional average. All officers received some raises,
but those on the force less than five years got larger raises.
Although some of the over-40 police officers had been on the
force less than five years, most were under 40. When a group
of older officers sued the court dismissed the action, holding
that they had failed to isolate a specific employment practice
that had a disparate impact on older officers.
REMEDIES AVAILABLE UNDER THE ADEA
Remedies in ADA cases
1. Back pay, including the value of lost benefits, reduced by
any wages and benefits that the employer earned at
another job (employees have a duty to mitigate damages).
2. Reinstatement, or front pay (loss of future wages) where
reinstatement is not feasible.
3. Liquidated damages in case of willful discrimination. See
Trans World Airlines v. Thurston, 469 US 111, and Hazen
Paper Co. v. Biggins, 507 US 604.
4. Attorneys’ fees.