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Nevada Law Library

Employment Discrimination Under The Age Discrimination in Employment Act (ADEA)

 

The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., protects workers aged forty or older from employment discrimination on the basis of their age.  As with Title VII, the ADEA recognizes claims under both disparate treatment and disparate impact theories of liability. See Smith v. City of Jackson, 544 U.S. 228, 232-34 (2005).

"The ADEA and Title VII share common substantive features and also a common purpose: 'the elimination of discrimination in the workplace.'" McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 358 (1995) (quoting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756 (1979)). Further, certain "language in the ADEA . . . was 'derived in haec verba from Title VII.'" Smith, 544 U.S. at 234. On issues where the ADEA and Title VII are in substantial accord, appropriately modified Title VII instructions should be given, as cross-referenced in this chapter.

The ADEA and Title VII are not identical. A brief summary of their differences is set forth below.

Mixed Motives: A Title VII plaintiff need only prove that a protected status was "a motivating factor" for an adverse employment action. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003). However, "textual differences between Title VII and the ADEA . . . prevent . . . [application of].Desert Palace to federal age discrimination claims." Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S.Ct. 2343, 2349, fn. 2 (2009). In Gross, the Court held "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id. at 2352. Thus, it was reversible error to instruct the jury using Title VII's "a motivating factor" formulation. Id.

Earlier Ninth Circuit cases applying the same standards to cases proceeding on disparate treatment or retaliation theories under the two statutes must now be read carefully in light of Gross. See generally Coleman v. Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir. 2000) ("The analysis under Title VII is the same as that under ADEA."); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n.11 (9th Cir.1998) ("This Court applies the same standards to disparate treatment claims pursuant to Title VII [and] the Age Discrimination in Employment Act . . . ."); O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996) ("Section 623(d) is the ADEA equivalent of the anti-retaliation provision of Title VII.").

Disparate Impact: After longstanding uncertainty on the issue, Smith held that an ADEA claim can be predicated on a disparate impact theory. 544 U.S. at 240. However, the Court held that because the Civil Rights Act of 1991 did not amend the ADEA, the pre-1991 heightened disparate impact standard applies. Id. (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)). Thus, in order to prove a disparate impact claim, plaintiffs must identify a "specific test, requirement, or practice . . . that has an adverse impact on older workers." Id.

Defenses: Unlike race or gender, certain business costs correlate directly with age. Thus, the ADEA permits an affirmative defense for certain actions related to the cost of non-compensation employment benefits. 29 U.S.C. § 623(f)(2)(B).  The ADEA's bona fide seniority system defense imposes the additional requirement, not found in the Title VII context, that the seniority system may not "require or permit . . . involuntary retirement[.]" 29 U.S.C. § 623(f)(2)(A).

Generally in a disparate impact case, the ADEA provides a broad defense when the employer's action is based on a reasonable factor other than age. 29 U.S.C. § 623(f)(1). This is substantially broader than the "business necessity" defense afforded by Title VII. See Smith, 544 U.S. at 243 ("Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the [reasonable factor other than age] inquiry includes no such requirement.").

Remedies: The remedies provision in the ADEA is borrowed from a wholly different body of law—the Fair Labor Standards Act ("FLSA"). See Lorillard v. Pons, 434 U.S. 575, 582 (1978) ("[Other than] those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA."). This creates substantial differences in damages instructions. Thus, the ADEA provides the FLSA's remedies of back pay, liquidated damages and injunctive relief. Additionally, front pay may be awarded in lieu of reinstatement if the court finds that reinstatement is not a feasible remedy. Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1347 (9th Cir. 1987) (ADEA case).

The ADEA does not provide for non-wage compensatory damages, such as damages for emotional distress, or for punitive damages. See Cancellier v. Federated Dept. Stores, 672 F.2d 1312, 1318 (9th Cir. 1982) (no punitive damages); Naton v. Bank of Cal., 649 F.2d 691, 698 (9th Cir. 1981) (no non-wage compensatory damages); compare 42 U.S.C. § 1981a(a)(1) (permitting recovery of compensatory and punitive damages under Title VII).

Because the ADEA's remedies analogue is the FLSA, not Title VII, the ADEA provides for a jury trial on the issue of back pay. See Lorillard, 434 U.S. at 582-84; compare Lutz v. Glendale Union High Sch., 403 F.3d 1061, 1067-68 (9th Cir. 2005) (plaintiff not entitled to jury determination of Title VII back pay award). On the question of whether or not front pay is an issue for the court or for the jury, see Traxler v. Multnomah County, 596 F.3d 1007 (9th Cir. 2010), and Cassino v. Reichold Chemicals, 817 F.2d 1338 (9th Cir. 1987).

The Elements of an ADEA Discrimination Claim

The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence in order to prevail on an age discrimination case under the ADEA:

1.                   the defendant discharged or took other adverse action against the plaintiff;

2.                   the plaintiff was 40 years of age or older at the time he/she was discharged or other adverse action was taken; and

3.                   the defendant discharged or took other adverse action against the plaintiff because of plaintiff’s age, that is, the defendant would not have the action but for plaintiff’s age.

Although a Title VII plaintiff need only prove that a protected status was "a motivating factor" for an adverse employment action, Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 2155 (2003), an ADEA plaintiff may not proceed on a mixed-motives theory. Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S. Ct. 2343 (2009). Accordingly, the committee has withdrawn earlier forms of this instruction which were based on variations of "sole cause" and "motivating factor" formulations derived from the Ninth Circuit's earlier decision in Desert Palace, Inc. v. Costa, 299 F.3d 838, 856 (9th Cir. 2002) (en banc) (emphasis in original), afd 539 U.S. 90 (2003).

Despite the fact that both Title VII and the ADEA prohibit discrimination "because of" a specified protected status, other "textual differences between Title VII and the ADEA . . . prevent . . . [application of] Desert Palace to federal age discrimination claims." Gross, 129 S.Ct. at 2349, fn. 2. Specifically, 1991 amendments to Title VII, but not to the ADEA, provide that discrimination is "established" when a plaintiff shows the protected status was "a motivating factor" for the adverse employment actions. Without this additional language in the ADEA, the Court held in Gross that "a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision." Id. at 2352. Thus, earlier Ninth Circuit cases applying the same standards to disparate treatment cases under the two statutes must now be read in light of Gross.

In describing the "but for" standard applicable in ADEA cases, the Court in Gross noted:

The words "because of" mean "by reason of: on account of." . . . Thus, the ordinary meaning of the ADEA's requirement that an employer took adverse action "because of" age is that age was the "reason" that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (explaining that the claim "cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome " (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the "but-for" cause of the employer's adverse decision.

 Id. at 2350 (emphasis original).

Hostile Work Environment in ADEA Claim

At least one Ninth Circuit case suggests that a viable hostile work environment claim can be stated under the ADEA. Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) ("A plaintiff may show violations of [the ADEA] by . . . proving the existence of a hostile work environment."). This is consistent with the general practice that, absent reasons to the contrary, intentional discrimination under the ADEA should be treated in the same fashion as Title VII. See generally Coleman v. Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir. 2000) ("The analysis [of disparate treatment claims] under Title VII is the same as that under ADEA."); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n.11 (9th Cir. 1998) ("This Court applies the same standards to disparate treatment claims pursuant to Title VII [and] the Age Discrimination in Employment Act . . . .")

As with Title VII, the ADEA defines "employer" to include the employer's agents. 29 U.S.C. § 630(b). Thus, the liability framework for Title VII harassment addressed in the Supreme Court's decisions in Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), should also apply to cases brought under the ADEA.

As applicable, the parallel Title VII instructions concerning hostile work environment claims (Instructions10.2A, 10.2B, and 10.2C) should be given, in a form modified to take into account that age is the protected characteristic by adding the element that the plaintiff was 40 years of age or older at the time of the harassment. See 29 U.S.C. § 631(a).

Retaliation In ADEA Setting

The ADEA "makes it unlawful for an employer to retaliate against an employee for opposing the employer's discriminatory practices or participating in any investigation or proceeding under the ADEA[.]" O'Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996). See 29 U.S.C. § 623(d). The Ninth Circuit applies the same standard in both ADEA and Title VII retaliation cases. See Hashimoto v. Dalton, 118 F.3d 671, 675 n.1 (9th Cir. 1997) ("[T]he ADEA anti-retaliation provision is 'parallel to the anti-retaliation provision contained in Title VII,' . . . 'cases interpreting the latter provision are frequently relied upon in interpreting the former.'" (quoting Passer v. Am. Chem. Soc, 935 F.2d 322, 330 (D.C. Cir. 1991))); O'Day, 79 F.3d at 763 ("Section 623(d) is the ADEA equivalent of the anti-retaliation provision of Title VII, 42 U.S.C. § 2000e- 3(a), and like its counterpart it makes it unlawful for an employer to retaliate against an employee for opposing the employer's discriminatory practices or participating in any investigation or proceeding under the ADEA."); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1441 (9th Cir.1990) ("We rely on cases involving retaliation claims brought under Title VII or Section 1981 as well as the ADEA. Few published opinions involve ADEA retaliatory claims. Those circuits that have considered ADEA retaliation claims have generally adopted the analysis used in Title VII cases without comment.").

Disparate Impact in ADEA Claim—Elements

The plaintiff has the burden of proving each of the following elements by a preponderance of the evidence:

1.                   the plaintiff was 40 years of age or older at the time the plaintiff was discharged, not hired, not promoted, demoted, etc.;

2.                   the defendant used a specific test, requirement, practice, or selection criterion that had a significantly adverse or disproportionate impact on employees 40 years of age or older; and

3.                   the defendant's test, requirement, practice, or selection criterion resulted in the plaintiff being discharged, not hired, not promoted, demoted, etc.

"A disparate impact claim challenges employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another . . . ." Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003). In Smith v. City of Jackson, 544 U.S. 228, 232 (2005), the Supreme Court affirmed the availability of a disparate impact claim under the ADEA.

The first element states the age threshold necessary to fall within the ADEA. See 29 U.S.C. § 631(a).  The second element reflects Smith's holding that "it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Smith, 544 U.S. at 232. (internal quotation omitted) (emphasis in original) (holding that the heightened disparate impact standard of Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989), applies in ADEA cases because the Civil Rights Act of 1991, which abrogated Wards Cove in Title VII cases, did not amend the ADEA). Thus, the plaintiff must establish that the employer uses a "specific test, requirement, or practice . . . that has an adverse impact on older workers." Smith, 544 U.S. at 232.

The third element states the requirement that the plaintiff "must show that he was subject to the particular employment practice with the alleged disparate impact." Pottenger, 329 F.3d at 750.

 

 

Source:  Ninth Circuit Manual of Model Jury Instructions (Civil)