Chapter 9
DISCRIMINATION BASED ON AGE
INTRODUCTION
This chapter covers the Age Discrimination in Employment Act (ADEA) passed in 1967. The act prohibits
employment discrimination based on age, if the age is 40 years old or above. While claims made under the
CHAPTER OUTLINE
I. The Age Discrimination Employment Act (ADEA)
A. The ADEA prohibits discrimination in terms or conditions of employment because of an
employee’s age being 40 or over. Many states have similar laws extending protection to even
younger employees.
1. The ADEA covers employers (including state and governments), unions, and
employment agencies in an industry affecting commerce, it if has 20 or more employees.
B. Age can be a BFOQ.
C. Plaintiff must prove a prima facie case, as is required in Title VII cases, however the
ADEA does not include mixed-motive cases, as Title VII does. The Plaintiff has a higher burden
of proving as was the “but for” factor, rather than one of the “determining factors.”
1. In order to establish a claim, the plaintiff must establish a prima facie case; if the
employer then offers a legitimate reason for the action, then the plaintiff must show the
reason is being used as pretext for age discrimination.
a) Two examples of age discrimination are:
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CASE 9.1 HARMON V. EARTHGRAINS BAKING COMPANIES, INC.
2009 WL 332705 (U.S. Ct. App. 6th Cir. 2009)
Facts: Michael Harmon, a manager at Eathgrains, was fired after failing to follow Earthgrains’ accident
reporting protocol. Earthgrains did not fill the vacancy created by Harmon’’s termination; rather, it
assigned Mark Carter, an existing district manager in Glasgow, Kentucky, who was 10 years younger than
Harmon (aged 58 at the time), to manage the area previously supervised by Harmon. Carter not only
absorbed permanently all of Harmon’s job responsibilities, but he also continued to serve as district
manager in Glasgow, thereby increasing his workload.
Issue: Given that Harmon’s replacement was also over 40 years of age, and given that he absorbed
plaintiff’s duties into his current job, rather than actually taking Harmon’s job as such, did the plaintiff
have a viable ADEA case?
Decision: The court of appeals had no hesitancy to rule for the defendant on these facts. Because Harmon
THE WORKING LAW
14 Former General Mills Employees File Class Action ADEA Suit
This pattern or practice age discrimination action case presents the issue of whether employees can
CASE 9.2 SMITH V. CITY OF JACKSON, MISSISSIPPI
544 U.S. 228 (2005)
Background: Having recognized that their starting salaries for police officers was lower than starting
salaries for police officers in other cities in the region, the City of Jackson, MS adjusted its pay scale,
raising salaries. Under the adjustment, officer with less than five years tenure received a higher
percentage raise than those who had been with the police department for longer than that. The older
officer claimed 1) intentional discrimination on the basis of age, and 2) disparate impact on the basis of
age.
Issue: (1) Is disparate impact a viable legal theory in ADEA claims, and (2) if so, is it applicable here?
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(2) No: In this case, the City has offered a reasonable factor other than age, and that was to raise pay rates
to the regional norms.
ANSWERS TO CASE QUESTIONS
1. Most older officers had been on the force for a longer period, so they did not qualify for the higher
2. Justice Stevens explained that Congress had “directed the thrust of the Act to the consequences of
employment practices, not simply the motivation.” The Court therefore had held that § 703(a)(2) of
Title VII did not require a showing of discriminatory intent. The Court’s opinion in Griggs relied
3. The ADEA’s recognition of reasonable factors other than age, said the Court, is simply a
reasonable, common-sense recognition that an employee’s ability to perform in a position will
4. The Plaintiffs have the burden of identifying a “specific test, requirement, or practice” within the
pay plan that has an adverse impact on older workers.” It is not enough to allege disparate impact.
The employee is responsible for “isolating and identifying the specific employment practices that
1. Defenses under the ADEA include the executive exemption, BFOQ’s, actions
pursuant to a bona fide seniority or benefit plan, or based on a factor other than age.
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3. Observing the terms of a bona fide seniority plan or benefit plan is not a violation
4. Public Employees’ Retirement System of Ohio v. Betts—the Supreme Court in
5. The OWBPA of 1990 added the requirement that the benefit plan treatment of
older workers must be cost justified—the employer needn’t equalize benefits between
older and younger employees if demonstrate cost equivalency of benefits to older and
younger employees.
6. Actions based on a reasonable factor other than age do not violate the ADEA.
Note to professor: One would think that public policy or good faith and fair dealing (or
perhaps ERISA) would prohibit an employer from terminating an employee simply to
deny the employee the right to vest under a pension plan.
D. The executive exemption allows the mandatory retirement at 65 of employees who have
been in a bona fide executive or policy-making position for at least two years prior to the
retirement date, and who, upon retirement will be entitled to benefits of at least $44,000 annually.
E. Section 623(j) allows state and local governments to set mandatory retirement ages for
F. BFOQ’s under the ADEA are defined similarly to those under Title VII—age must be
reasonably necessary to the normal operation of the business.
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CASE 9.3 E.E.O.C. V. EXXON MOBILE CORPORATION
560 Fed. Appx. 282 (5th Cir. 2014)
Facts: In 1959, the FAA adopted a rule prohibiting pilots from flying in any operations in Part 121 of the
FAA’’s regulations if the pilot was over the age of 60 (“Age 60 Rule”). Part 121 applied to “large
commercial passenger aircraft, smaller propeller aircraft with 10 or more passenger seats, and common
carriage operations of all-cargo aircraft with a payload capacity of 7,500 pounds.” The FAA supported
this Age 60 Rule. Defendant Exxon adopted a similar retirement-at-60 rule for its corporate pilots. The
EEOC challenged this rule in court.
Issue: Is Exxon’s mandatory retirement rule a valid BFOQ?
Decision: The EEOC failed to address the fact that Part 121 covered a wide range of operations and to
3. The 1990 OWBPA amendments to the ADEA inserted provisions allowing early
retirement incentives and waivers.
4. Waivers must strictly comply with the requirements of the act: additional
compensation was given for the waiver, they must be written and specifically refer to
rights under the ADEA, and only waive rights arising prior to the waiver.
a) The employee must be advised, in writing, to consult an attorney, and
must be given at least 21 days before deciding whether to execute the waiver.
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CASE 9.4 OUBRE V. ENTERGY OPERATORS, INC.
522 U.S. 422 (1998)
Background: Oubre [O] signed a release of claims against Entergy [E] in return for severance pay; the
release did not comply with the requirements of the ADEA. After receiving the last installment of the
severance pay, O filed suit under the ADEA; E claimed that O’s retention of the severance pay acted as a
ratification of the release and barred O’s suit. E’s claims are based on general contract law and on
equitable estoppel—the retention of the severance benefit acts to ratify the release.
Issue: Does retention of money paid in exchange for an ADEA waiver act as a bar to a suit, if the waiver
was in violation the OWBPA?
Decision: No. The ADEA, as amended by the OWBPA, allows waivers if they are voluntary and
ANSWER TO CASE QUESTIONS
1. The waiver signed by Oubre did not make specific reference to ADEA claims; she was not given
sufficient time to consider signing it; and she was not given the required seven day period to change
her mind after signing it.
2. Entergy does not argue that the waiver complies with the ADEA; instead, it argues that Oubre’s
3. No, the court says that Oubre is not required to return the severance pay she received before suing.
The release was improper under the ADEA, so it did not operate to waive her claims; retaining the
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ETHICAL DILEMMA
The student’s response should contain the recognition that the ADEA prohibits discrimination based on
age, but that the employer needs only a reasonable factor other than age, to defend itself.
This is an opportunity for the students to explore whether an employee’s personal life situation should be
considered when making layoff decisions. Also, is it ethical to base the decision on which employee may
5. Procedures under the ADEA
a) The EEOC enforces the ADEA, but the Act also allows individual suits.
b) An individual must file a written complaint with the EEOC, and with the
state or local EEO, if one exists; the complaints may be filed simultaneously. (p.
258)
f) If the EEOC terminates proceedings, the complainant has ninety days to
file suit from receiving the right to sue notice from the EEOC.
g) Astoria Federal Savings & Loan v. Solimino held that an individual
could file suit even if the state or local agency finds that the individual was not a
victim of age discrimination.
G. After-acquired evidence* does not preclude the plaintiff’s right to sue, but does go to the
issue of what remedies are available, according to McKennon v. Nashville Banner Publishing. (p.
259)
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*After–acquired evidence is evidence discovered by an employer after having taken allegedly
discriminator action against an employee that the employer attempts to use to justify the action already
taken.
H. Arbitration of ADEA claims was required in Gilmer; agreements to arbitrate employment
disputes, knowingly and voluntarily signed by employees, will be enforced by the courts. (p. 259)
J. The EEOC may file suit under the ADEA
1. The EEOC must attempt conciliation before filing suit; there is no time limit for
conciliation efforts. (p. 260)
2. The federal courts are split on the question of whether there is a specific time
limitation within which the EEOC must file suit. (p. 260)
ANSWERS TO END OF CHAPTER PROBLEMS
QUESTIONS
1. Employers may offer supplemental pension and medical benefits as an incentive for early
retirement. Employers may require that employees selecting early retirement execute a waiver if
2. An employer may establish that age was a BFOQ for a particular position, based on the “business
necessity” test similar to that used under Title VII; that is, the same and efficient operation of the
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by the local law (the law of the country where the workplace is located) conflict with the ADEA.
3. Layoffs must be made across the board, without regard to ages. Early retirement packages may be
4. Mandatory retirement may be instituted under (1) the executive exemption that allows the
mandatory retirement at age 65 of employees who have been in a bona fide executive or policy-
5. A plaintiff must demonstrate a specific policy or practice that has resulted in a disparate impact
CASE PROBLEMS
6. The workers must identify a specific criterion that was used as having a disparate impact, and may
7. Under 29 U.S.C. §632(j)(2), any hiring or retirement decision by a law enforcement agency
8. There response to this question is predicated on a case that is accessible through a general internet
9. He has shown that (1) he belonged to the protected class, (2) that he applied and was qualified for
the position of Postmaster and could reasonably expect selection under the post office’s ongoing
10. Note to professor, this question is predicated on a case that is not available through an internet
11. York and Lindsey established a prima facie case of age discrimination—younger waitresses were
not terminated for conduct that was the purported reason for terminating York; Lindsey was
apparently qualified to work as a dancer and there was some evidence that she was refused the
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12. The court dismissed Parkinson’s claims because Cordmaker had established a legitimate business
reason for its actions—financial difficulties and business downturn. To establish a claim of
retaliation, the plaintiff has to show that he was engaged in activity protected under the ADEA,
13. The court held that it was not clear that Woythal was fired—Tex-Tenn claimed that he had quit
after being told to “shape up or ship out.” Tex-Tenn also argued that Woythal’s negative attitude
14. No. The court found that the listing of birth dates alone could be considered evidence of age
discrimination. As the court stated: “Age, like sex, is a salient characteristic-information that we
use to “place” someone we don’t know, to help form a picture in our mind of the person.
HYPOTHETHICAL SCENARIOS
15. He can show a prima facie case: 1) he is in a protected class; 2) he was qualified for the job; 3) he
was not given the job; and 4) the job was given to someone younger.
16. According to the principle set out in University of Tennessee v. Elliot, a state administrative
agency decision should not preclude a suit in federal court based on substantially the same facts.
However, in the actual case here, the plaintiff sought judicial review of the denial of
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17. The City can prevail if it can show a business necessity such as the safe and efficient operation of
the Police Dept., or public safety for the age restrictions. Additionally, Under 29 U.S.C.
18. This case is based on the recent Supreme Court ruling Kentucky Retirement Systems v. EEOC, 06-
1037, June 19 2008. The Court said that the Plan does not violate the ADEA, stating “where an
19. Phillips would have to show that she was in a protected class, was qualified for the job, did not
get the job, and the job was given to someone younger. Since the hypothetical does not tell us
20. The court in this case ruled, “We conclude that these specific allegations were sufficient to state a
claim for age and sex discrimination under ADEA and Title VII. In sum, Ms. Castillo alleged that
her superiors at Allegro did not want to employ a woman of her age, in part because she was
bearing children, taking maternity leave, and taking on additional responsibilities outside the