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									                        ADEA Basics

“Ageism is as odious as racism and sexism.” --- Claude Pepper

Protected Group --- Individuals 40 years old and above (originally the
protected group was 40 – 65)

Employers --- Those with 20 or more employees

It has been estimated that approximately 39% of employees will be age
55 and older by 2010
                      ~ ADEA Exemptions ~

• Mandatory retirement at age 65 for “bona fide executives” or “high
policymaking employees"

• Safety Officers (e.g., police and firefighters) consistent with State and
local laws

• Bona fide apprentiship programs (e.g., can refuse to accept those over
a given age). Need to be able to show that age at entry is a BFOQ)

• Commercial airlines (pilots and co-pilots 60 years old). Can opt to
work in “lesser” capacity such as flight engineers

• Air traffic controllers (those past 30 can be refused for hire; except
retired military air traffic controllers). But, they must retire at age 56

• Certain kinds of elected or appointed officials (e.g., State judges)
ADEA’s focus was on the effects of prejudice and stereotypes in limiting the
opportunities of older workers (e.g., a belief that job performance edeclines with

• Cleveland and Landy (1983) reviewed the gerontology literature and
found chronological age not to be a valid predictor of performance for
a specific individual in a particular job

• Evidence from a meta-analysis (Waldman & Avolio, 1986) found no
significant differences between age groups in objective work
performance measures. Rather, the analysis indicated that older
workers received lower performance scores when subjective
supervisory ratings were used

• Laczko and Philipson (1991) reviewed studies of age effects on job
performance and learning ability. It was found that older workers are
as productive as younger workers, they are almost as capable of
learning (despite less formal education), and have an energy,
flexibility, and willingness to learn
                     ~ Sample Ageism Scale Items ~

• Most old people get set in their ways and are unable to change
• It is foolish to claim that wisdom somes with old age

• Most old people tend to let their homes become shabby and unattractive

• Most old people spend too much time prying into the affairs
  of others and giving unsought advice

• Most old people should be more concerned with their personal appearance;
they’re too untidy

• If old people expect to be liked, their first step is to try to get rid of their
irritating faults
• Old people have too much power in business and politics
• Most old people make me feel ill at ease
                      ADEA Burden of Proof Process

Phase 1: Challengers must establish a prima facie case by providing evidence of
age discrimination by showing that:

• They are 40 years old or older
• They were qualified for the position in question
• They were victims of an unfavorable employment decision (e.g., not hired,
  promoted, fired)
• The organization favored an individual who was considerably younger than the

Phase 2: Company must articulate that a legitimate, nondiscriminatory reason
exists for their decision

Phase 3: The challenger proves that the organization's reason for their rejection
is a pretext for discrimination
                         BFOQ Defense

 1) “That the BFOQ is reasonably necessary to the essence of
the business” and

2) “That it has reasonable cause, i.e., a factual basis for believing
that all or substantially all persons within the protected age
group would be unable to perform safely and efficiently the
duties of the job involved, or whether it is impossible or
impractical to deal with persons in the protected age group on
an individual basis” (Usery v. Tamiami Trail Tours, Inc. 1976,
pg. 1241-1242).
               Role of Individual Assessment

Western Airlines v. Criswell (1985)

Western Airlines policy forced flight engineers to retire at age 60;
Criswell filed an ADEA suit and met his Phase 1 burden under the ADEA

Phase 2: Western Airlines claimed that age was a BFOQ

• Their primary business was the safe transportation of passengers

• They had a rational basis for believing those over 60 were not qualified

• Testing the ability of all flight engineers age 60 or above was impractical
             Supreme Court Decision in Criswell

ADEA intended a BFOQ to be a relatively narrow exception; a lot of
individual variation exists

The S. Ct. said that the ADEA indicates a:

“ ... preference for individual evaluation expressed in the language and
legislative history of the ADEA. Under the Act, employers are to evaluate
employees … on their merits and not their age. In the BFOQ defense,
Congress provided a limited exception to this general principle, but required
that employers validate any discrimination as "reasonably necessary to the
normal operation of the particular business." It might well be "rational" to
require mandatory retirement at any age less than 70, but that result would
not comply with Congress' direction that employers must justify the rationale
for the age chosen.”
Other problems with Western Airline’s positions were the fact that:

• Other airlines did not require mandatory retirement before age 70

• Western Airlines used individualized tests in other, comparable situations

• The Federal Aviation Administration believed that individualized testing was
  practical for such jobs.

Criswell won.
                      Safety Concerns & BFOQ

• Where safety issues of 3rd parties exist (regarding a BFOQ defense) the
company: “Must be afforded substantial discretion in selecting specific age-
related standards which, if they err at all, should be on the side of
preservation of life and limb” (Tamiami, p. 1243)

• An employer’s burden of showing a BFOQ is “inversely proportional to
the degree and unavoidability of the risk to the public or fellow employees
inherent in the requirements and duties of a particular job” (Aarin v. Davis,
p. 1572).
  RFOA Defense (Reasonable Factor Other Than Age)

Organization must show that ots decision was decision was

• “Reasonable” and

• Based on some factor (s) other than age

• Company needs only to articulate clearly the specific nature of the FOA
            Reeves v. Sanderson Plumbing Products, Inc
Reeves was fired for poor performance reasons (company position)
Suit filed alleging that this explanation was a pretext for age discrimination

• Formed a prima facie case based on the McDonnell Douglas criteria
• Provided evidence that showed the company’s legitimate reasons for termination were
false (lower court said that this did not mean that Reeves has presented sufficient
evidence that he had been fired because of his age)
• Recipient of derogatory age-based remarks from his supervisor (lower court said
these comments were not made with specific reference to the decision to terminate
Reeves) Use of indirect evidence -

                  Enough to infer the fact of intentional discrimination

“… a plaintiff ’s prima facie case. Combined with sufficient evidence to find that the
employer’s asserted justification is false, may permit the trier of fact to conclude that the
employer unlawfully discriminated.”
       O'Conner v. Consolidated Coin Caterers (1996)

   Brief Facts:

   • O’Conner, 67 years old, was replaced him with someone age 40 (i.e.,
   someone in the protected age group)

   • The organization said the O’Conner did not establish a prima facie case
   because he was replaced by an individual who was also in the protected
   age group

   Supreme Court: The ADEA was meant to disallow discrimination because of
   age. Therefore, the critical evidence for age discrimination in this case was that
   the person who replaced the fired employee was substantially younger.

“The fact that one person in the protected class has lost out to another person in the
protected class is thus irrelevant, so long as he has lost out because of his age. …
there can be no greater inference of age discrimination … when a 40 year old is
replaced by a 39 year old than when a 56 year old is replaced by a 40 year old. …the
fact that a replacement is substantially younger than the plaintiff is a far more
reliable indicator of age discrimination than is the fact that the plaintiff was replaced
by someone outside the protected class.”
        Adverse Impact in the ADEA

• Smith v. City of Jackson (2005)
  Extends coverage of adverse impact into the ADEA, but under
  different rules than in Title VII

• Meacham v. Knolls Atomic Power (KAPL; 2008)
  Addressed a major residual issue from the Smith case
     Background on Smith v. City of Jackson

• In 1980s courts treated adverse impact in ADEA with Title VII rules
  (e.g., Geller v. Markham, 1980 & Leftwitch v. Harris-Stowe, 1983)

• In Hazen v. Biggens (1993), S.Ct. rules --- employer decisions may
  be motivated by "factors other than age ... even if the motivating
  factor is correlated with age."

• 3 Justices also stated that there are good reasons to preclude
  adverse impact claims in the ADEA

• After Hazen, most circuit courts rule that adverse impact is
  unavailable in ADEA as a matter of law, but some court rule
                          Hazen v. Biggens (1993)
• Biggens fired after 9 years on the job (10 years needed to be vested in the company’s
retirement plan; timing was a few weeks before he was eligible)

• He filed an ADEA suit (age was a determinative factor in the company’s decision)

Regarding an RFOA:

“ ... there is no disparate treatment under the ADEA when the factor motivating the
employer is some feature other than the employee's age.”

“ ... a decision by the company to fire an older employee solely because he has nine
plus years of service and therefore is "close to vesting" would not constitute
discriminatory treatment on the basis of age. The prohibited stereotype
("Older employees are likely to be ___") would not have figured in this decision, and
the attendant stigma would not ensue. The decision would not be the result of an
inaccurate and denigrating generalization about age, but would rather represent an
accurate judgment about the employee--that he indeed is "close to vesting."

“Our holding is simply that an employer does not violate the ADEA just by
interfering with an older employee's pension benefits that would have
vested by virtue of the employee's years of service.”
                            Hazen v. Biggens (1993)

Regarding Adverse Impact and the ADEA:

“ ... we have never decided whether a disparate impact theory of liability is
available under the ADEA. ... and we need not do so here.”

But, Court ruled in favor of Biggens that the company violated ERISA
       Brief Facts in Smith v. City of Jackson

• Police officers and dispatchers with less than 5 years experience get
  higher percentage increases and those over 40 sue on grounds of
  adverse impact via ADEA

• Lower courts rules adverse impact is unavailable in ADEA as a
  matter of law

• Supreme Court takes case to settle split among circuit courts
           Supreme Court Ruling in Smith
• In a 5-3 ruling, S.Ct. rules that adverse impact is available in

• Adverse impact follows same prima facie (Phase 1) rules in Title VII
  and ADEA --- Statistical evidence of an identified employment practice
  that disproportionately excludes protected group members

• Unlike Title VII, which demands proof of job-relatedness &
  consistency with business necessity (in Phase 2) forcing the plaintiff to
  prove an equally valid practice with less or no adverse impact (in Phase

•    But, the ADEA permits the RFOA defense in Phase 2 forcing plaintiffs
    to prove that factors advanced are not reasonable (Phase 3)

                                THUS ------->
                   GRIGGS-ALBEMARLE (TITLE VII)

              Statistical evidence of an identifi ed employment practice that
Prima Facie
              disproportionately excludes protected group members

              Proof that the challenged practice is job-related and consistent with
              business necessity

              Proof there is an equally valid, job-related practice with less or no
              adverse impact

                 SMITH V. CITY OF JACKSON (ADEA)

              Statistical evidence of an identifi ed employment practice that
Prima Facie
              disproportionately excludes protected group members

              Proof that the challenged practice is supported by a Reasonable
              Factor Other Than Age (RFOA)

              Proof that the factor cited is unreasonable, or not the true reason for
              the employment practice
             Meacham v. KAPL (2004)
      [Before Supreme Court ruling in Smith]

• Over 98% of RIF victims are 40 or older

• KAPL articulates that RIF criteria are (a) criticality of skills
  and (b) flexibility for retraining as RFOA

• Plaintiffs proved there are alternatives with less adverse impact,
  including (a) hiring freeze and (b) extension of a voluntary
  separation plan (VSP) to employees with less than 20 years of

• Plaintiffs Win
                            But --------->
              Meacham v. KAPL (2006)
        After Supreme Court ruling in Smith

• Question is whether RFOA defense affirmative or merely an
  articulation that plaintiff must disprove

• All prior rulings involving RFOA have required affirmative proof
  by defendant; same is true for other statutory defenses (e.g., BFOQ)

• However, 2 Circuit judges favor the productive defense (i.e.,
  articulation -- forcing plaintiffs to prove the articulation is
  unreasonable, which they cannot

• 3rd judge writes long dissent

>>> Plaintiffs lost 2-1
               Supreme Court Ruling in
                  Meacham v. KAPL

• Supreme Court unanimously agrees with the dissenting judge,
  listing numerous reasons why statutory defenses such as RFOA
  (e.g., Bona Fide Occupational Qualification (BFOQ), Bona Fide
  Benefit Plan (BFBP), Bona Fide Seniority System (BFSS)) are
  affirmative defenses

• Court rules 7–1 that the employer must meet the burden of
  persuasion (i.e, prove their RFOA, not simply articulate it).
          ~ Moral of Smith and Meacham ~

• Very hard for plaintiffs to wiqn with factors that are correlated with
  age (as in Smith)

• However, actual decisions that negatively affect actual employees
  (as in a RIF) are problematic for employers (e.g., Meacham)

Recommendation: In a RIF, avoid BS criteria such as “flexibility”
  and “criticality” unless you can affirmatively prove they are valid
Summary of Key ADEA Cases
  Older Workers Benefits Protection Act of 1990

Designed to confront age discrimination in the administration of benefit

Special attention was given to voluntary severance or retirement plans (to be
eligible for such plans employees are often required to waive their rights to sue
for ADEA violations)

Company Requirements Under the OWBPA

• Waivers must be put in writing, be understandable to the average mployee, and
references employee rights contained under the ADEA

• Organizations must offer “new” incentives (e.g., benefits, compensation)

• Individual employees must be given 21 days to consider waivers; groups
  of employees need to be allotted 45 to review waivers

• Employees must have 7 days to rescind a signed agreement

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