...to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment. 29 U.S.C. ?621(b)
Employment agencies are prohibited from declining to refer for employment or otherwise discriminating against any individual because of the individual's age. 29 U.S.C. ?623(b). The ADEA defines an employment agency as a person who regularly undertakes to procure employees for an employer or an agent of such a person whether the person works with or without compensation. 29 U.S.C. ?630(c).
Labor organizations are prohibited from discriminating in offering the privileges of membership or declining to refer for employment individuals in the protected age group. They are also prohibited from attempting to cause an employer to discriminate against protected individuals on the basis of age. 29 U.S.C.?623(c). A labor organization to be covered must maintain or operate a hiring hall or hiring office or have 25 or more members. In addition, it must either be certified as a bargaining representative under the National Labor Relations Act or the Railway Labor Act, or be a national or international organizations which is recognized or acting as a bargaining representative in an industry affecting commerce. 29 U.S.C. ?630(d).
The ADEA defines an employee as an individual employed by an employer but it exempts from that definition elected officials of a state or political subdivision of a state. Certain staff members or policy making appointees are also exempted from the definition of employee. 29 U.S.C. 630(b).
The individuals protected by the ADEA are those who are at least 40 years of age. Nonetheless, Florida employers should bear in the mind the broader coverage of the Florida Civil Rights Act (the "FCRA"). The FCRA also bars discrimination on the basis of age, but it does not limit its prohibition to any specific age group. Therefore, the FCRA forbids discrimination against any individual on the basis of age. How the prohibition against age discrimination will be applied with respect to persons at the lower end of the age spectrum is uncertain. Although other states have similar protections, there is a dearth of precedent applying the age discrimination statutes to the younger individuals.
The ADEA bars employers, employment agencies and labor organizations from discriminating against one who has opposed any practices made unlawful by the Act. Discrimination against one who has filed a charge, testified, or assisted or participated in an investigation or suit under the Act is also prohibited. 29 U.S.C. ?623(d). In EEOC v. Cosmair, Inc., L'Oreal Hair Care Division, 821 F.2d 1085 (5th Cir. 1987) the court found that it was unlawful retaliation to discontinue severance payments to a former employee who had signed a release, when he subsequently filed a discrimination charge with the EEOC. The court found that a release of the right to file an EEOC claim is void as against public policy. In EEOC v. Board of Governors of State College, 957 F.2d 424 (7th Cir. 1992) the court found it was retaliation for a state university to discontinue processing grievances through its collectively bargained grievance procedure for employees who had also filed charges with the EEOC. (See also Williams v. Bristol-Myers Scribb Co., 85 F.3d 270 (7th Cir. 1996) where the court held it was a jury question whether the plaintiff was fired for falsification of records or in retaliation for having testified in a co-worker's age discrimination suit.)
It is also unlawful for an employer, labor organization or employment agency to publish advertisements, notifications or other materials indicating any preference or specification based on age. 29 U.S.C. ?623(e).
The ADEA as originally enacted provided for administration and enforcement by the Secretary of Labor. Pursuant to a reorganization plan effective February 23, 1978 the powers of the Secretary of Labor were transferred to the Equal Employment Opportunity Commission (the "EEOC"). The EEOC is empowered to issue rules and establish such reasonable exemptions from the ADEA as it may find necessary and proper in the public interest. 29 U.S.C. ?628. The regulations issued by the EEOC are found in the Code of Federal Regulations beginning at 29 CFR ?1625.
The high policy maker exemption also applies to individuals who do not have significant line authority but who play an important role in the development and recommending the implementation of corporate policy. This might include a chief economist or a research scientist.
The Act further exempts state or municipal firefighters or law enforcement officers employed by a state or a political subdivision of a state where age limits are set by state or local law. These individuals may be retired pursuant to "...a bona fide hiring or retirement plan that is not subterfuge to evade the purposes of [the] Act." 29 U.S.C. ?623(j)(2).
The ADEA provides that it is not an unlawful employment practice for a covered entity "...to observe the terms of a bona fide seniority system...which is not a subterfuge to evade the purposes of [the] Act." 29 U.S.C. ?623(f)(2)(A). The regulations provide that to be bona fide a seniority system must use length of service as a primary criteria for allocating opportunities or benefits, although the system may be qualified by merit factors. If the system gives lesser rights or favors treatment to those with longer service it may be found to be a subterfuge to evade the purposes of the Act. 29 CFR ?1625.8(b).
The ADEA also permits employers to act on age based criteria "...where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age...". 29 U.S.C. ?623(8). The regulations provide that the employer asserting a bona fide occupational qualification (BFOQ) defense has the burden or proving that the age limit is reasonably necessary. 29 CFR ?1625(b) The employer must prove that substantially all the people excluded from the job are disqualified or some of the individuals excluded have a disqualifying trait that cannot be ascertained except by reference to age. 29 CFR ?1625(b). The "reasonable factor other than age" defense is not particularly susceptible to definition and must be considered on a case by case basis. In general different treatment based on the average cost of employing older employers is not permitted. 29 CFR ?1625.7(f).
In Transworld Airlines, Inc. v. Thurston, 469 U.S. 111 (1985) the Supreme Court held that preventing airline pilots who have reached the age of 60 from bumping into flight engineer's positions was not based on a BFOQ. Unlike pilots, flight engineers are not barred by FAA regulations from working on commercial carriers beyond the age of 60. Pilots disqualified from their jobs before reaching 60 were permitted to bump into flight engineer's jobs. Challenges to the airlines applying the FAA rule which prohibits pilots 60 years or older on commercial carriers have invariably failed. See Professional Pilots Federation v. Federal Aviation Administration, (DC Cir.)[95-1604 7/15/97]
State agencies may be exempted from ADEA suits by individuals under the Eleventh Amendment to the Constitution which prohibits individuals from suing states in Federal Court. Currently the Supreme Court has under consideration whether the ADEA has abrogated state immunity having granted certiorari in Kimel v. Florida Board of Regents, 139 F.3d 1426 (11th Cir. 1998) cert. granted, 67 U.S.L.W. 3348 (U.S. Jan. 25, 1999) (No. 98-791). The Court's answer may be forthcoming shortly since oral arguments were heard on October 13, 1999. In Kimel a divided panel of the Eleventh Circuit held that ADEA did not override state immunity to suits by individuals in federal court. In contrast the Seventh Circuit found that the ADEA did abrogate state immunity in Goshtasby v. Board of Trustees of University of Illinois, 141 F.3d 761 (7th Cir. 1998). The Fifth Circuit reasoned similarly in Scott v. University of Mississippi, 148 F.3d 493. Since the Eleventh Amendment only bars suits against states in federal court by individuals the EEOC will be able to bring ADEA suits against state agencies no matter how the Supreme Court decides Kimel.
Suits enforcing the rights of individuals under the ADEA may be brought by the EEOC or by the aggrieved individual. 29 U.S.C. ?626(b) & (c). The plaintiff may recover lost wages. Where the violation is found to be willful, recovery will include an equivalent amount in liquidated damages. A violation is willful where the employer either knew or showed reckless disregard for the matter of whether its conduct violated the ADEA. Transworld Airlines v. Thurston, supra, 469 U.S. p. 128. Where a violation of ADEA is found courts are not limited to awarding monetary relief. They may order the hiring one who was not offered a job because of age or they may order the promotion of one who was denied advancement because of age. A court may order the re-hire of an employee who was discharged in violation of the ADEA. Where reinstatement would not be an appropriate remedy the court may order the payment of lost future wages or "front pay." The purpose and limitations on ordering front pay were discussed in Denesha v. Farmers Insurance Exchange, 161 F.3d 491, 501-02 (8th Cir. 1998):
Under the ADEA the district court must tailor its remedy to make the injured party whole. Brooks v. Woodline Motor Freight, 852 F.2d 1061 (8th Cir. 1988). Front Pay is an equitable remedy that in limited circumstances may be awarded in lieu of reinstatement, as where there is such hostility between the parties that "a productive and amicable working relationship would be impossible." Id (quoting EEOC v. Prudential Federal Savings and Loan Association, 763 F.2d 1166, 1172 (10th Cir.)
Attorney's fees can also be awarded to the prevailing plaintiff in an ADEA suit. 29 U.S.C. ?216(b). It is a foregone conclusion that attorney's fees will be awarded to an employee who prevails in an ADEA action. Fees will be awarded to the employer who prevails against the employee only where the suit is brought in bad faith Turlington v. Atlanta Gas Light Company, 135 F.3d 1428 11th Cir. 1998) citing EEOC v. Hendrix College, 53 F.3d 209, 211 (8th Cir. 1995); EEOC v. O. & G. Spring & Wire Forms Specialty Co., 38 F.3d 872, 883 (7th Cir. 1994); Gray v. New England Telephone & Telegraph Co. 792 F. 2d 251, 260 & N.1; and Morgan v. Union Metal Manufacturing, 757 F.2d 792, 796 (6th Cir. 1985)
An individual employee may bring a class action on behalf of other employees similarly situated. The ADEA incorporates the "opt in" class action provisions of the Fair Labor Standard Act (Codified at 29 U.S.C. ?216(b)). No person can be made a party to an ADEA class action unless the individual's consent is given in writing and filed with the court. In some instances an employee who has not filed a charge with the EEOC may "piggy back" as an opt in plaintiff in an action brought by a similarly situated employee who has filed a timely charge. Grayson v. K-Mart Corp., 79 F.3d 1086 (11th Cir. 1996). For a contrary view, see Whalen v. W.R. Grace & Co., 56 F.3d 504 (3d Cir. 1995).
An individual may not bring a civil action until 60 days after filing a charge alleging unlawful discrimination with the EEOC. 29 U.S.C. ?626(d) The charge must be filed no later than 300 days after the actions complained of in a state such as Florida which has an act with comparable coverage. Such a state is referred to as a "deferral state." Where there is no such state agency, the aggrieved person has only 180 days to file an administrative charge. In a deferral state suit cannot be brought by an individual until 60 days after a claim is filed with the state agency such as the Florida Civil Rights Commission unless the agency terminates its proceedings sooner than 60 days after the claim is filed with it.
The EEOC may conduct investigations on its own initiative. 29 U.S.C. ?626 Thus if a charging party withdraws his or her charge, the Commission may still proceed to investigate. The EEOC's power to investigate includes entering establishments, inspecting and copying records, interviewing employees and supervising the payment of sums owed. The EEOC also has the power to subpoena records and the attendance and testimony of witnesses.
Sometimes questions may arise where an employer is uncertain of the consequences under the ADEA of an action or a proposed action. An opinion letter may be requested by writing to the Equal Employment Opportunity Commission at 1801 L Street, N.W., Washington, D.C. 20507. The letter should provide a concise statement of the issues, a reasonably full statement of the relevant facts and address of the person making the request. 29 CFR ?1626.17. The Commission may issue an opinion letter or provide informal advice. 29 CFR ?1626.18. An opinion letter may be relied upon by the employer as though it were a written regulation, order, ruling or interpretation.
This method is applied in a modified form for reduction-in-force (RIF) cases. To make a prima facie case in a RIF suit the employee must establish (1) membership in the protected age group, (2) qualification to perform his or her current position and (3) evidence that the employer intended to discriminate on the basis of age in reaching the adverse employment decision. Although replacement is not an essential element of proof for the employee in a RIF case, where an employee is replaced by some one younger or where younger individuals already employed take over the discharged employee's duties, the inference is likely to be most negative. See Benson v. Tocco, supra 113 F.3rd at p. 1208. The laid off employee may also established a prima facie case by showing there was another available position that he or she could have filled. Mitchell v. Worldwide Underwriters Insurance Co., 967 F.2d 565 (11th Cir. 1992). The employee must prove that the job was available. The ADEA does not require the employer to fire younger employees to make room for the laid off protected age group employee. Earley v. Champion International Corp., supra. Courts have abstained from rejecting the employer's economic reasons for a reduction in force, stating that they do not have the power to second guess a business decision that a RIF is necessary. Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996), Doan v. Seagate Technology, Inc., 92 F.3d 74 (10th Cir. 1996).
After the employee fulfills the requirements necessary to establish a prima facie ADEA case, the employer's burden is to articulate a non-discriminatory reason for its action. The employer does not have to prove the non-discriminatory reason. It merely needs to state it. The employer's reason may be based on a mistaken belief, it may be a poor reason or it may be no reason at all. However, if the employer uses a non-discriminatory reason in good faith it rebuts the employee's principal case. See Nix v. WLCY Radio/Rahall Communications 738 F.2d 1181, 1187 (11th Cir. 1984). Elrod v. Sears Roebuck and Co., 939 F.2nd 1466(11th Cir 1991). And O'Connor v. DePaul University, 75 FEP Cases, 1051 (7th Cir. 1997).
Once the employer has articulated a non-discriminatory basis for its action, the employee has the burden of demonstrating that the reason is merely a pretext for discrimination. This may be done by showing that the employer's reason is not worthy of belief or that people outside of the protected age group were treated more favorably under like circumstances.
There is an alternative means of proving discrimination by showing that a facially neutral policy or practice has an adverse "disparate impact" on the protected group. The motive of the employer is not taken into account in a disparate impact case. The crucial factor is the result of some otherwise apparently neutral factor. An example of a practice that may have a disparate impact is a strength or agility requirement. The employer can defend such a practice by showing that the requirement is a reasonably necessary requirement for the job or there is a reasonable business necessity for the practice. The employee may then proceed to establish his or her case by showing that the employer could have used a less discriminatory practice to achieve the same results.
The disparate impact method of proof is clearly applicable in cases arising under Title VII of the 1964 Civil Rights Act, 42 U.S.C. ?2000e, et seq, which bars discrimination on the basis of race, sex, religion and national origin. Griggs v. Duke Power Co., 401 U.S.424 (1971) The federal appellate courts are in disagreement as to whether disparate impact may be used to prove an ADEA case. The Supreme Court observed in Hazen Paper Co. v. Biggins, 113 S.Ct. 1701, 1706 (1993) that it has never decided whether the disparate impact theory is available to establish an ADEA case. Federal appellate courts are in disagreement. The First, Third, Seventh and Tenth Circuits have rejected the disparate impact means of proof in ADEA cases. Mullin v. Raytheon Company, 164 F.3d 696 (1st Cir. 1999), DiBiase v. SmithKline Beecham Corp., 48 F.3d 719 (3d Cir. 1995), 733 cert. denied, 116 S.Ct. 306; EEOC v. Francis W. Parker School, 41F.3d 1073 (7th Cir. 1994) and Ellis v. United Airlines, 73 F.3d 999 (10th Cir. 1996). The Eighth and Ninth Circuits take a different view. Smith v. Des Moines, (99 F.3d 1466)(8th Cir. 1996), Lewis v. Aerospace Community Credit Union, 114 F.3d 745 (8th Cir. 1997) and EEOC v. Local 350, 998 F.2d 641, 648 N.2 (9th Cir. 1993). The Eleventh Circuit id as yet undecided on this issue. See Turlington v. Atlanta Gas Company, 135 F..3d1428, 1436-37 N. 17 (11th Cir. 1999)
A like result was reached in Madel v. FCI Marketing, (8th Cir.)116 F.3d 1247, a case in which two discharged plaintiffs claimed that a higher level manager referred to them as "old farts," "old f___'ers," and "the geriatric set." The employer's defense was that the negativism of the employees in working with others was the basis of its decision. While the manager who made the ageist comments did not discharge the employees, there was evidence that he recommended their termination. See also Ryder v. Westinghouse Electric Corp., 74 FEP Cases 1867, 1870-71 (3rd Cir. 1997) where comments by a manager who later became the Company CEO, relating to the need for younger workers and removing "blockers" who impeded the progress of younger workers were held to be admissible evidence in a RIF case. The plaintiffs recovered a substantial judgment.
A striking example of how ill chosen words can damage an employer's case is found in Denesha v. Farmers Insurance Exchange, 161 F.3d 491 (8th Cir. 1998) There one manager was found to have said "younger employees were running circles around the older employees." Another stated that the company could improve by getting rid of "old heads." The appellate court affirmed a jury verdict in favor of the plaintiff, who had been fired, in the amount of $102,614 in back pay, $61, 666.67 of front pay. The plaintiff was also awarded $149,906.97 in attorney's fees. The court found it significant that the ageist comments were made in close proximity in time to the adverse action taken against the plaintiff.
The court in Woythal v. Tex-Tenn Corporation, 112 F.3d 243, 247(6th Cir. 1997) made reference to several cases where age related comments contributed to a finding that an employer had engaged in age discrimination:
The cases Woythal relies on to show that comments about an employee's age all involve far more egregious statements than occurred here. See McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990) (older employee told he could be "cheaply replaced with a younger salesman"); EEOC v. Manville Sales Corp., 27 F.3d 1089, 1094 (5th Cir. 1994) ("old man," "old and inflexible" and "incapable"); Corbin v. Southlan Int'l Trucks, 25 F.3d 1545, 1549 (11th Cir. 1994) ("at your age you cannot produce like you once could, and we are going to have to make some kind of adjustment"); Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1108 (9th Cir. 1991) ("old warhorse"); Braverman v. Penobscot Shoe Co. 859 F. Supp. 596, 602 (D.Me. 1994) (employer provided plaintiff with unsolicited and unwelcome retirement information package and suggested that he retire)
A plaintiff may not be able to make out an ADEA claim on smoking gun statements alone. Such comments have supported the ADEA plaintiff's case there has been other convincing evidence of a discriminatory animus.
In other cases courts have found certain age related comments to be mere "stray remarks" not worthy of playing a role in the outcome of the case. EEOC v. Texas Instruments, Inc., 100 F.3d 1173 (5th Cir. 1996) involved a reduction in force in which several individuals in their fifties were laid off because of a decline in business. None had poor reviews or a disciplinary history. The comments in question were "it's just that you've reached the age and years of service that we can bridge you to retirement" and "his age got him." The court found that these remarks did not suggest the employer's reason for selecting the employees was pretextual. The court summarized the law at 100 F.3d 1181:
This court has repeatedly held that "stray remarks" do not demonstrate age discrimination. See, e.g., Waggoner v. City of Garland, 987 F.2d 1160, 1166 (5th Cir. 1993) (a statement by a decision maker that an employee was an "old ____" and a younger person could complete his work faster was a stray remark insufficient to establish age discrimination; Guthrie v. Tifco Industries, 941 F.2d 374, 378-79 (5th Cir. 1991) (holding that such "statements are too vague to be accepted as direct evidence of age-bias."); Turner v. North American Rubber, Inc., 979 F.2d 55, 59 (5th Cir. 1992)(vague and remote remarks cannot establish age discrimination). In order for an age-based comment to be probative of an employer's discriminatory intent, it must be direct and unambiguous, allowing a reasonable jury to conclude without any inferences or presumptions that age was an impermissible factor in the decision to terminate the employee. Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993).
See also Nidds v. Schindler Elevator Corp., 75 FEP Cases 571, 573 (9th Cir. 1997) where a district supervisor allegedly said that he intended to get rid of the "old timers" as they would not "kiss my ass." The court found the comments not to constitute a pretext as the import was ambiguous. It could have referred to long time employees under 40 or persons who would not take directions from the supervisor. In E.W. Blancho Co. v. Enan, 75 FEP Cases, 1043 (8th Cir. 1997) a statement that the younger individual who was preferred to a position over the plaintiff was the "right age" was found to be a stray remark. In O'Connor v. DePaul University Supra, 75 FEP Cases at 1056 the court held that stray remarks if they stand alone as evidence will not support an inference of pretext which will prevent the employer from obtaining a summary judgement.
Plaintiff's have sometimes claimed that certain types of comments that do not directly refer to age suggest a discriminatory motive. In Grossman v. Dillard Department Stores, Inc., 109 F.3d 457 (8th Cir. 1997) the court found that statements that the plaintiff was not promotable as he was not transferable or mobile were not proxies for stating that he was too old. In Blackwell v. Cole Taylor Bank, 152 F.3d 666, 671 (7th Cir. 1998) the court held that the saying individuals were not "energetic" and flexible was not using code words" for "over 40".
Other plaintiffs have unsuccessfully tried to assert a discriminatory motive where a manager has asked them about their retirement plans. In Woythal v. Tex-Tenn Corp. 112 F.3d 243 (6th Cir. 1997) the court found that a manager's repeated inquiries about the plaintiff's future were not suggestive of a discriminatory animus. Questions about an employee's retirement plans, which were asked four times over a three year period were found not to support an ADEA claim in Ziegler v. Beverly Enterprises Minnesota, Inc., 133 F.3d 671 (8th Cir. 1998). Questions about the plaintiff's retirement plans along with a comment that the plaintiff was too old to continue in his work were found insufficient to establish his allegations of age discrimination in Debs v. Northeastern Illinois University, 153 F.3d 340 (7th Cir. 1998). Such evidence was insufficient to show the employer's reasons for its actions to be pretextual where an independent investigator's report indicated that the plaintiff was causing serious morale problems among his subordinate's. In Cox v. Dubuque Bank and Trust Company, 163 F.3d 492, 498 (8th Cir. 1998) a judgment for an ADEA plaintiff was reversed and the case sent back for a new trial because the trial court had refused to instruct the jury that state and federal law does not prohibit an employer from asking an employee his retirement plans where reasonable under the circumstances. The court took cognizance of the fact that Cox, herself, had raised the issue of retirement. She had indicated that she intended to move away from the area when her husband retired.
A plaintiff will fail in an attempt to support his or her case with ageist comments unless it can be demonstrated that the speaker was involved in the decision to bring about the complained of conduct. Thus in McKnight v. Kimberly Clark Corp., 149 F.3d 1125 (10th Cir. 1998) the plaintiff was unable to rely on age related comments made by co-workers, even where some of these remarks were allegedly heard by members of management. In Shorette v, Rite of Maine, Inc., 155 F.3d 8 (1st Cir. 1998) the statement by the plaintiff's store manager that the plaintiff should file an age discrimination action and that he had a good age discrimination case did not show pretext on the part of the company as the manager had did not take part in the decision about which the plaintiff complained. The plaintiff in Bush v. Dictaphone Corporation,161 F.3d 363 (6th Cir.1998) was unable to show pretext for age discrimination on the part of the employer where he failed to show that the individuals who he claimed made age related comments were involved in the decisions to demote and to dismiss him. See also Swanson v.Leggett & Platt Inc., 154 F.3d 730,___ (7th Cir. 1998) where statements by a non decision maker that age played a part in the plaintiff's discharge and another's comment that "we have to get rid of some of the old guys" were given no weight as they were made by individuals who were not involved with the decision to discharge the plaintiff.
The cases where stray remarks have not been found determinative do not suggest that employers should be less alert to negative age related comments in the work place at any level. It is as important to guard against ageist comments as against racial, ethnic or sexual comments. Obviously age related remarks may result in a negative inference where an adverse action has been taken against one or more persons in the protected group. Additionally, they may result in an actionably hostile work environment. This was the case in EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244, 1247 N. 4 (11th Cir.1907). There an employee who had gone through menopause was subjected to comments that she "was getting a fat ass," becoming "an old fat bag," that she had "saggy boobs" and was asked whether she was having any hot flashes today. When the comments continued after she made appropriate complaints, she left her employment. The court held her leaving to be justified finding that she was constructively discharged in violation of the ADEA.
2. The Correlation Between Length of Service, Age and Salary: Age is Not Wage.
Obviously those who have most service with an employer are likely to be the employer's older employees. Not infrequently those who are older and have more service earn more than their younger peers. In some instances it is possible to replace them with younger employees at lower wages. It has sometimes been asserted that adverse action against employees with greater earnings is in and of itself discrimination in violation of the ADEA. This was the holding of the court in Metz v. Transmit Mix, Inc., 828 F.2d 1202 (7th Cir. 1987). The Supreme Court addressed this issue in Hazen Paper Company v. Biggins, supra, specifically rejecting the reasoning of the Metz case. The Supreme Court held that the employer did not violate the ADEA when it discharged a 62 year old employee a few weeks before he would have been employed for the ten years necessary to vest in pension benefits. Finding in the employer's favor on the ADEA claim the court stated at 113 S.Ct. 1705 "we clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age." The court further noted:
When the employer's decision is wholly motivated by factors other than age the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age as pension status typically is. Id at p. 1706.
Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other and thus it is incorrect to say that a decision based on years of service is necessarily "age based". Id at p. 1707.
Where a discharged employee happens to earn a greater salary by virtue of greater service and happens to be in the protected age group, these facts by themselves do not make the employer's act violative of the ADEA. In Lewis v. Aerospace Community Credit Union, 114 F.3d 745, 749 N. 4 (8th Cir. 1997) the court held that the fact that a plaintiff's salary was one consideration for his being selected for a reduction in force did not give rise to an inference of age discrimination. In Broaddus v. Florida Power Corporation, 145 F.3d 1283, 1287 (11th Cir. 1998) the court stated that
The ADEA does not prohibit an employer from making an employment decision on the basis of higher salaries, increased benefits, or claims for medical expenses even though these characteristics are often correlated with an employee's age. Those decisions may violate ERISA, but they do not violate the ADEA. (Emphasis supplied)
3. Replacement by a Younger Employee in the Protected Age Group.
An employer cannot defend an ADEA claim on the basis that a dismissed employee was replaced by another employee over 40 years old where the replacement is significantly younger than the person replaced. In O'Connor v. Consolidated Coin Caterers Corp., 116 S.Ct. 1307 (1996) where a dismissed 56 year old employee was replaced by a 40 year old employee, the Supreme Court reasoned that the ADEA bars discrimination because of age, not because one is in the protected age group. However, the court observed that discrimination cannot be inferred where the age difference between the dismissed worker and the replacement is insignificant. See also Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 440 at FN 1 (11th Cir. 1996). And Keller v. ORIX Credit Alliance, Inc. (CA 3 No. 95-5289, 11/24/97).
The EEOC regulations go even further than the decision in the O'Connor case. At 29 CFR ?1625.2(a) the regulations state that where two persons apply for a job, one 42 and the other 52, the employer cannot reject either one because of age. Thus according to the EEOC it is unlawful to give preference on the basis of age to an older person over a younger person in the protected age group.
A number of courts have considered what constitutes a significant difference in age for purposes of the ADEA. The results vary. In Ross v. University of Texas at San Antonio, 139 F.3d 521, (5th Cir. 1998) the plaintiff complained that there was a pay disparity based on his age. The court found that the one year difference in age between Ross and the younger individual who received an equity increase that Ross did not receive, was insignificant. In Bush v. Dictaphone Corporation, 161 F. 3d 363 (6th Cir. 1998) where the 46 year old plaintiff complained of his demotion. The court found that the fact that his replacement was 41, and thus only five years younger was not a sufficiently significant age difference to suggest age discrimination. In Hartley v. Wisconsin Bell, 124 F. 3d 887, 893 (7th Cir. 1997) the court found the fact that the 51 year old plaintiff was laid off while two individual in the same job classification, ages 45 and 44 were retained did not suggest age discrimination when considered with the other neutral reasons given that favored the employer's decision. The court reasoned that what constitutes a significant age gap may vary from one case to another when taken into consideration with all the facts in the case. Where there is other substantial evidence to suggest that the employer was motivated by considerations of age a smaller age difference may be significant.
The Eleventh Circuit found a discharged plaintiff's replacement by an individual three years younger to be a legally significant age difference where there was other substantial evidence to suggest age discrimination in Carter v. DecisionOne Corporation, 122 F.3d 997 (11th Cir. 1997). See also Carter v. City of Miami, 870 F.2d 578, 582-83 (11th Cir. 1989).
The decisions indicate that the cases do not depend exclusively on the difference in age between the plaintiff and those with whom the plaintiff is being compared. It is just one more fact that is considered with all the other evidence. Where the employer's defense is weak a smaller age gap is likely to support the plaintiff's case. Where the employer is able to substantiate its actions with convincing evidence it requires a greater age difference to support the plaintiff's claim.
4. What Constitutes Discrimination: Adverse Action.
To make a prima facie case of age discrimination under the McDonnell Douglas procedure, the employee must show that the employer subjected him or her to an adverse employment action. The ADEA prohibits an employer from discriminating "...with respect to...compensation, terms, conditions, or privileges of employment." 29 U.S.C. ?623(a)(1) or by "...limit[ing], segregat[ing] or classify[ing] ... 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." 29 U.S.C. ?623(a)(2).
Demotions, discharges or refusals to hire are clearly adverse actions which subject employers to liability where the decision is based on the employee's age. Other types of actions about which an employee may complain are not necessarily adverse actions which might incur liability under the ADEA. A purely lateral transfer is not an adverse action even if it results in minor changes. The subject was insightfully discussed in Williams v. Bristol-Myers Scribb Co., supra at 85 F.3d at pp. 273-274. In that case the plaintiff, a pharmaceutical detailer, was transferred to a different division where he had to learn new products. His commissions, which were only part of his earnings, declined. After he was transferred he was required to enter a burdensome "coaching program." His peers were ordinarily not required to enter such a program until they had been on a new job for eight months. The court found that the plaintiff had not suffered an adverse action. It noted that any involuntary transfer is likely to result in more work and initially less pay for a commission salesperson. Holding such changes were minor the court observed at 85 F.3d 274:
...otherwise every trivial personnel action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit. The Equal Employment Opportunity Commission, already staggering under an avalanche of filings too heavy for it to cope with, would be crushed, and serious complaints would be lost among the trivial.
While the court found that "...an indirect and minor effect on commission income" did not turn lateral transfers into demotions, caution is nevertheless advisable. For example in Eskra v. Provident Life Insurance Co. 125 F. 3d 1406, 1412 (11th Cir. 1997) the court found adverse action where an employee who was removed from his job in Miami was offered another position in Pittsburgh. The court reasoned that there was no assurance that his income under the employer's incentive payment plan would be the same as it had been in Miami, as the employer had guaranteed to maintain his compensation level for only one year after the transfer.
Courts have also found that criticism even where it is harsh does not constitute adverse employment action. See Simmerman v. Hardee's Food Systems, 7 AD Cases 887, 889 (EDPA 1996). Nevertheless, where a protected age group employee is treated differently from significantly younger peers, the employer should be prepared to offer valid non-discriminatory reasons even though the employer's action may not violate the ADEA.
5. Inconsistent Statements.
There will be occasions where an ADEA plaintiff will have applied for benefits under the employer's long term disability plan, social security disability benefits or claimed permanent total disability to obtain worker's compensation. While the courts are not in agreement, some cases have held that an employee cannot claim lost wages in a discrimination action while asserting elsewhere that he or she is unable to perform the work for which the wages would be paid. Simon v. Safelite Glass Corp., 128 F.3d 68 (2d Cir. 1997) was a case in which an ADEA plaintiff had applied for and was awarded social security disability benefits. These benefits are only available to one who is unable to work. The application must be made under oath. The plaintiff had a severe visual impairment due to a degenerative condition in his eyes. In his application for benefits he stated his disability commenced on the date that he was laid off from his job and he was not able to work thereafter. The court held he was judicially estopped from pursuing his ADEA claim. See also Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597 (9th Cir. 1996), an age claim under the California Fair Employment and Housing Act, where the plaintiff's suit was barred because he had been a successful applicant for worker's compensation disability benefits. To obtain the benefits he had to assert under oath that he was disabled. In these case the courts have looked with great disfavor on what they regarded as plaintiff's taking inconsistent positions under oath for financial gain.
In Talavera v. School Board of Palm Beach County, 129 F 3rd 1214 (11th Cir, 1997) the court found that the plaintiff was not barred in recovering under the Americans With Disability Act ("ADA") where she had received total disability benefits under Social Security. On her application she had described serious disabilities which made work difficult but that did not mean that her employer could not have made a reasonable accommodation to her disability. However, the court did state that the plaintiff is barred from denying the truth of any statements in a disability application.
A different result might have been obtained in some of the foregoing cases after the Supreme Court decision in Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597 (1999), an ADA case. The plaintiff, Ms. Cleveland, suffered a stroke which impaired her ability to perform her job. She suffered from difficulties with memory, concentration and language skills. She alleged that she requested accommodations from her employer, including additional training and additional time to perform he work. After her employer terminated her employment she applied for and received Social Security Disability Benefits ("SSDI"). To obtain these benefits she asserted that she was unable to work because of her disability. She backed this assertion with evidence from her physician. To prove her ADA claim it was necessary for Ms. Cleveland to prove that she could perform her position with a reasonable accommodation. The Supreme Court held that these two positions were not per se in conflict and that she should be allowed to explain any apparent inconsistency. The Court noted that the standards under the ADA and the Social Security Act are different. The later does not take into account whether the applicant can work with a reasonable accommodation.
6. The "Same Actor Defense."
Where the individual who hires an ADEA plaintiff is the same person who fired that individual there is an inference that the actor's views on age have not changed during the plaintiff's employment. This is particularly so where the time between the hiring and the discharge are not significantly far apart. The court described this proposition succinctly in Grossman v. Dillard Department Stores, Inc. 109 F.3d 457, 459 (8th Cir. 1997):
Most tellingly Franzke hired Grossman when Grossman was forty-eight fired him when he was fifty-two, and the following year hired four operations managers who were over forty, two of them over fifty. To uphold the jury's verdict, [for Grossman] we would have to believe that Franzke, himself fifty-eight, was free of age bias when he hired Grossman, suddenly turned against older workers four years later, then just as abruptly changed his mind again. That is more than reasonable people can swallow. See Lowe v. J.B. Hunt Transport, Inc., 963 F. 2d 173, 174-5 (8th Cir. 1992); Rothmeir [v. Invesment Advisors, Inc.] 85 F.3d at 1337.
In an ADEA case as in any other employment related case, the employer should not overlook the potential benefits of mediation. While in Florida the courts order mediation in most cases, this usually takes place close to the end of the proceedings. By that stage most parties have incurred considerable expense and positions have hardened. Consideration should be given to initiating mediation during the earliest stage of the dispute that it is practicable to do so. Early settlement not only saves money, it avoids the diversion of time and effort the parties must expend pursuing their respective positions. It also allows for a more flexible outcome. The courts power is limited to awarding money and certain injunctive relief. Where the parties settle on their own they have greater flexibility in coming to terms that best suit their circumstances. Where continued or new employment is involved, an agreed upon settlement can salvage a relationship that is to be continuing. In mediation the parties work together to arrive at a mutually satisfactory resolution.
Certain precautions must be observed in settling an ADEA claim. The employer will want a waiver or a release of the employee's claims. To be valid and enforceable a waiver of an ADEA claim must fulfill certain requirements. These requirements are spelled out in Older Workers' Benefit Protection Act ("OWBPA") 29 U.S.C. ?626(f) which amended the ADEA in October of 1990. OWBPA requires that a waiver must be "knowing and voluntary." The minimum requirements of OWBPA for a waiver to be knowing and voluntary are set forth in the statute: