Employment Law Attorneys

Age Discrimination

This article will provide information regarding the elements necessary to establish an age discrimination case of discrimination as well as the defenses to such a claim of discrimination. In addition, this chapter will discuss what to do if you believe you have been discriminated against based upon your age and/or if you have been accused of discriminating against an employee based upon their age.

OVERVIEW OF AGE DISCRIMINATION

Forty is the magic number at which the Age Discrimination in Employment Act (hereinafter “ADEA”) protects an employee. “The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 631(a), prohibits an employer from discriminating on the basis of age if that person is over 40 years old.” Chambers v. Metropolitan Property and Cas. Ins. Co., 351 F.3d 848, 855 (C.A.8 (Minn.),2003). What does ADEA prohibit? Courts have held that “[t]he ADEA expressly forbids an employer from discriminating against individuals in the workplace on the basis of age. “It shall be unlawful for an employer–(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age ….” Id. at § 623(a).” Cheng v. Benson, 358 F.Supp.2d 696, 698 (N.D.Ill.,2005). The language in ADEA regarding what actions are prohibited is essentially the same as that under Title VII. “As enacted in 1967, § 4(a)(2) of the ADEA, now codified as 29 U.S.C. § 623(a)(2), provided that it shall be unlawful for an employer “to limit, segregate, or classify his 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, because of such individual’s age ….” 81 Stat. 603. Except for substitution of the word “age” for the words “race, color, religion, sex, or national origin,” the language of that provision in the ADEA is identical to that found in § 703(a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlier statute.” Smith v. City of Jackson, Miss., 125 S.Ct. 1536, 1540 -1541 (U.S.,2005).

What was the rationale for Congress’ passage of ADEA? “The ADEA was promulgated in order to protect older workers from the insidious effects of workplace discrimination based on age. “It is therefore the purpose of [the ADEA] 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)….. The United States Supreme Court, in General Dynamics Land Systems v. Cline, has explained the legislative intent behind the ADEA. This legislation was intended, broadly speaking, to “forbid[ ] discriminatory preference for the young over the old.” 540 U.S. 581, 584, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004). “Congress’s interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better.” Id. at 586, 124 S.Ct. 1236. The legislative history of the ADEA indicates that Congress was aware of the fact that “an individual’s chances to find and keep a job get worse over time; … [and] the older [are] more apt to be tagged with demeaning stereotype.” Id. at 589, 124 S.Ct. 1236. This legislation was promulgated, therefore, to protect older workers from suffering discrimination that would work to their disadvantage, while giving an unfair advantage to younger workers. Id. at 590-91, 124 S.Ct. 1236.” Cheng v. Benson, 358 F.Supp.2d 696, 698 -699 (N.D.Ill.,2005).

Congress was concerned about the stereotypes that stigmatized older workers. “As the Supreme Court has pointed out, the ADEA “was prompted by [a] concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes” that productivity and competence decline with age. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). Although the plaintiffs quote Hazen for the proposition that the ADEA “requires the employer to ignore an employee’s age,” Id. at 612, 113 S.Ct. 1701, they take that statement out of context. Employers may not consider an employee’s age for its own sake, but the ADEA does not prohibit them from considering other factors that correlate with age. Id. at 611, 113 S.Ct. 1701. In Hazen the plaintiffs were allegedly fired to keep their pensions from vesting, and although the vesting of pensions correlates with age, the Supreme Court held that such a firing did not constitute discrimination under the ADEA (though it may violate other federal statutes, such as ERISA). Id. at 611-12, 113 S.Ct. 1701. Since age and years of service are “analytically distinct,” a decision based on years of service is “not necessarily ‘age-based.’ ” Id. at 611, 113 S.Ct. 1701. By contrast, the ADEA protects against “inaccurate and stigmatizing stereotypes.” Id. at 610, 113 S.Ct. 1701.” Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 548 (C.A.6 (Tenn.),2004).

ELEMENTS OF AGE DISCRIMINATION CAUSE OF ACTION

Intentional Age Discrimination

Courts have held that a plaintiff may prove intentional age discrimination by either direct evidence of age discrimination or indirect evidence of age discrimination. “A plaintiff can demonstrate age discrimination in two ways, either through: direct evidence or by an indirect or inferential method of proof.” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (C.A.5 (Tex.),2004). The elements of a direct or indirect evidence case are different. “To prevail on an age-based termination claim, a plaintiff must show that his or her age “actually motivated” and “had a determinative influence on” the employer’s decision to fire him or her. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 2105, 147 L.Ed.2d 105 (2000), quoting Hazen Paper Co., 507 U.S. at 610. This can be done either through the production of direct evidence of discrimination that meets the requirements of Justice O’Connor’s controlling opinion in Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (where the employment action was allegedly motivated by a combination of legitimate and illegitimate, i.e., “mixed” motives) or through the production of indirect or circumstantial evidence of discrimination that satisfies the familiar three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). McNulty v. Citadel Broadcasting Company, 58 Fed.Appx. 556 (3d Cir.2003).” Glanzman v. Metropolitan Management Corp., 290 F.Supp.2d 571, 578 (E.D.Pa.,2003).

Direct Evidence of Age Discrimination

What is direct evidence? Courts have held that “[d]irect evidence is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002).” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 (C.A.5 (Tex.),2004). Courts have acknowledged that direct evidence requires a showing that the employer used the plaintiff’s age as a negative factor in making its decisions. “Under Price Waterhouse, when an ADEA plaintiff alleging unlawful termination presents “direct evidence” that his age was a substantial factor in the decision to fire him, the burden of persuasion on the issue of causation shifts, and the employer must prove that it would have fired the plaintiff even if it had not considered his age. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir.2002). “Direct evidence” means evidence sufficient to allow the jury to find that the decision makers placed substantial negative reliance on the plaintiff’s age in reaching their decision. Fakete, 308 F.3d at 338, quoting Connors v. Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir.1998) (quoting Price Waterhouse, 490 U.S. at 229, 109 S.Ct. 1775). Such evidence “leads not only to a ready logical inference of bias, but also to a rational presumption that the person expressing bias acted on it” when he made the challenged employment decision. Id., quoting Starceski v. Westinghouse Electric Corp., 54 F.3d 1089, 1097 (3d Cir.1995). In other words, the evidence must reveal a sufficient discriminatory animus making it unnecessary to rely on any presumption from the prima facie case to shift the burden of production. Anderson v. Consolidated Rail Corp., 297 F.3d 242, 248 (3d Cir.2002), citing Connors, supra.” Glanzman v. Metropolitan Management Corp., 290 F.Supp.2d 571, 578 (E.D.Pa.,2003).

Direct evidence cases shift the burden of persuasion whereas indirect evidence cases that employ the McDonnell Douglas three-prong test require shifting the burden of proof. “If, however, plaintiff produces direct evidence of discrimination, the McDonnell Douglas test is “inapplicable.” The Price Waterhouse, mixed-motives theory of discrimination comes into play where direct evidence of discrimination is presented, but the employer asserts that the same adverse employment decision would have been made regardless of discrimination. 490 U.S. 228. Although Price Waterhouse can be characterized as a method to prove discrimination, the mixed-motives theory is probably best viewed as a defense for an employer. See Price Waterhouse, 490 U.S. at 246, 109 S.Ct. 1775 (“[T]he employer’s burden is most appropriately deemed an affirmative defense: the plaintiff must persuade the factfinder on one point, and the employer, if it wishes to prevail, must persuade it on another.”). Unlike McDonnell Douglas, which simply involves a shifting of the burden of production, Price Waterhouse involves a shift of the burden of persuasion to the defendant. In other words, under Price Waterhouse, once a plaintiff presents direct evidence of discrimination, the burden of proof shifts to the employer to show that the same adverse employment decision would have been made regardless of discriminatory animus. If the employer fails to carry this burden, plaintiff prevails…In summary, Price Waterhouse and McDonnell Douglas are alternative methodologies for proving discrimination. Mooney v. Aramco Serv. Co., 54 F.3d 1207, 1216-17 & n. 11 (5th Cir.1995) (quotations and citations omitted).” Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (C.A.5 (Tex.),2004).

Under the mixed-motives theory, a plaintiff need not show that the discriminatory animus was the actual basis for the adverse action but only that the discrimination was a motivating factor in the employment decision. One district court recently described the mixed-motives analysis, “A mixed-motives case arises when an employment decision is based on a mixture of legitimate and illegitimate motives…. If the employee proves the unlawful reason was a motivating factor, the employer must demonstrate that it would have taken the same action in the absence of the impermissible motivating factor.” Louis v. E. Baton Rouge Parish Sch. Bd., 303 F.Supp.2d 799, 801-04 (M.D.La.2003); see also Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 553 (10th Cir.1999) (noting that a mixed-motives analysis applies “where the evidence is sufficient to allow a trier to find both forbidden and permissible motives.”) (quotations and citations omitted). Whereas under the pretext prong of the McDonnell Douglas analysis, the plaintiff aims to prove that discriminatory motive was the determinative basis for his termination, under the mixed-motives framework the plaintiff can recover by demonstrating that the protected characteristic (under the ADEA, age) was a motivating factor in the employment decision. See id.; Mooney, 54 F.3d at 1216-17.” Rachid, 376 F.3d at 309 -310.

Some courts have also held that a mixed-motives analysis does not just have to be used solely in direct evidence cases but can be used, as well, in indirect evidence McDonnell-Douglas cases. In one such case, the court held that direct evidence is not necessary to use a mixed-motive analysis in ADEA cases. The court reasoned, “[g]iven that the language of the relevant provision of the ADEA is similarly silent as to the heightened direct evidence standard, and the presence of heightened pleading requirements in other statutes, we hold that direct evidence of discrimination is not necessary to receive a mixed-motives analysis for an ADEA claim. Accord Estades-Negroni v. Assoc. Corp. of N. Am., 345 F.3d 25, 31 (1st Cir.2003) (holding that after Desert Palace the mixed-motives analysis applies in ADEA cases even without direct evidence of discrimination); Strauch v. Am. College of Surgeons, 301 F.Supp.2d 839, 844 (N.D.Ill.2004) (“Given the similarities in text and purpose between Title VII and ADEA, as well as the consistent trend of transferring the various proof methods and their accompanying rules from one statute to the other, this Court considers it likely that whatever doctrinal changes emerge as a result of Desert Palace in the Title VII context will be found equally applicable in the ADEA arena.”); Thompson v. Proviso Township High Sch. Dist. 209, No. 01-C-5743, 2003 WL 21638808, at *8 (N.D.Ill. July 10, 2003).” Rachid, 376 F.3d at *311-312.

After this decision, a plaintiff can either show that the defendant’s action was pretextual or that the defendant’s decision was based on a legitimate non-discriminatory reason and another motivating factor to wit the plaintiff’s age. Thus, the court made clear that “[o]ur holding today that the mixed-motives analysis used in Title VII cases post-Desert Palace is equally applicable in ADEA represents a merging of the McDonnell Douglas and Price Waterhouse approaches. Under this integrated approach, called, for simplicity, the modified McDonnell Douglas approach: the plaintiff must still demonstrate a prima facie case of discrimination; the defendant then must articulate a legitimate, non-discriminatory reason for its decision to terminate the plaintiff; and, if the defendant meets its burden of production, “the plaintiff must then offer sufficient evidence to create a genuine issue of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another “motivating factor” is the plaintiff’s protected characteristic (mixed-motive[s] alternative).’ ” Rishel v. Nationwide Mut. Ins. Co., 297 F.Supp.2d 854, 865 (M.D.N.C.2003) (noting that courts need “only modify the final stage of the McDonnell Douglas scheme to accommodate Desert Palace, by framing the final stage ‘in terms of whether the plaintiff can meet his or her “ultimate burden” to prove intentional discrimination, rather than in terms of whether the plaintiff can prove “pretext” ‘ “) (citing and quoting Dunbar v. Pepsi-Cola Gen. Bottlers of Iowa, Inc., 285 F.Supp.2d 1180, 1197-98 (N.D.Iowa 2003)). If a plaintiff demonstrates that age was a motivating factor in the employment decision, it then falls to the defendant to prove “that the same adverse employment decision would have been made regardless of discriminatory animus. If the employer fails to carry this burden, plaintiff prevails.” Mooney, 54 F.3d at 1217. Accord Louis, 303 F.Supp.2d at 801-04 (noting that to defeat a mixed-motives claim once a plaintiff shows that the prohibited characteristic was a motivating factor, the defendant must demonstrate that “it would have taken the same action in the absence of the impermissible motivating factor.”).” Rachid, 376 F.3d at 312 -313.

Indirect Evidence of Age Discrimination

Claims of age discrimination can also be proven by indirect evidence of age discrimination. In fact, this is the more common method to demonstrate age discrimination. Claims of indirect evidence of discrimination are analyzed under the McDonnell Douglas three-prong burden shifting analysis. “Because Chambers did not offer direct evidence of discrimination, we consider this case under the familiar framework of ‘the McDonnell Douglas three-stage order of proof and presumptions.’ Mathes v. Furniture Brands Int’l., Inc., 266 F.3d 884, 887 (8th Cir.2001) (internal quotation marks omitted); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This framework requires Chambers to establish a prima facie case of age discrimination, at which point the employer must come forward with a legitimate nondiscriminatory reason for its conduct. Mathes, 266 F.3d at 887. It then becomes the plaintiff’s burden to demonstrate that the nondiscriminatory reason offered by the employer was really a pretext for discrimination.” Chambers v. Metropolitan Property and Cas. Ins. Co., 351 F.3d 848, 855 (C.A.8 (Minn.),2003.

Courts have set forth very precise elements necessary to prove a prima facie case of age discrimination with indirect evidence. “To proceed under the McDonnell Douglas framework, a plaintiff must first show that (1) she is over 40, (2) she is qualified for the position in question, (3) she suffered an adverse employment decision, and (4) she was replaced by a sufficiently younger person to create an inference of age discrimination. Elwell v. PP & L, 47 Fed.Appx. 183 (3d Cir.2002), quoting Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.1995). If the plaintiff is able to establish a prima facie case, a presumption of age discrimination arises which the employer must rebut by providing a legitimate non-discriminatory reason for the adverse employment action. Id. As evidence of discrimination, a plaintiff may show that other, younger employees were retained or otherwise treated more favorably and that he or she is similarly situated in terms of qualifications and position to the employees retained. See, e.g., Showalter v. University of Pittsburgh Medical Center, 190 F.3d 231, 236 (3d Cir.1999); Maidenbaum v. Bally’s Park Place, Inc., 870 F.Supp. 1254, 1259 (1994) aff’d w/o opinion, 67 F.3d 291 (3d Cir.1995).” Glanzman v. Metropolitan Management Corp., 290 F.Supp.2d 571, 578 (E.D.Pa.,2003). See also, Mianegaz v. Hyatt Corp., 319 F.Supp.2d 13, 19 (D.D.C.,2004)( “To establish a prima facie case of age discrimination, the plaintiff must show that: (1) he is a member of the ADEA’s protected class of persons over forty years of age; (2) he was qualified for his position and was performing his job well enough to meet his employer’s legitimate expectations; (3) he suffered an adverse employment action despite his qualifications and performance; and (4) he was disadvantaged in favor of similarly situated younger employees. Reeves, 530 U.S. at 142, 120 S.Ct. 2097; Hall, 175 F.3d at 1077; Paquin, 119 F.3d at 26 (citing Coburn v. Pan Am. World Airways, Inc., 711 F.2d 339, 342 (D.C.Cir.1983)).

Courts have held that the burden of proving a prima facie case under ADEA is de minimus. “The Second Circuit has clearly stated that the plaintiff’s burden in establishing a prima facie case is de minimis. Auerbach, 136 F.3d at 109-10; Criley v. Delta Air Lines, Inc., 119 F.3d 102, 104 (2d Cir.1997).” Ranieri v. Highland Falls-Fort Montgomery School Dist., 198 F.Supp.2d 542, 544 (S.D.N.Y.,2002).

Once the employer has substantiated a legitimate non-discriminatory reason for the employment action, courts have held that the sole remaining issue is discrimination vel non. “If the defendant successfully presents a legitimate, non-discriminatory reason for its action, “the McDonnell Douglas framework–with its presumptions and burdens–disappears, and the sole remaining issue is discrimination vel non.” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C.Cir.2003) (internal citations omitted). At this point, to survive summary judgment, the plaintiff “must show that a reasonable jury could conclude from all of the evidence that the adverse employment decision was made for a discriminatory reason.” Id. (citing Aka, 156 F.3d at 1290). The court must therefore consider whether a jury could infer discrimination from (1) the plaintiff’s prima facie case, (2) any evidence the plaintiff presents to attack the employer’s proffered explanation, and (3) any further evidence of discrimination that may be available to the plaintiff. Waterhouse v. District of Columbia, 298 F.3d 989, 992-93 (D.C.Cir.2002) (quoting Aka, 156 F.3d at 1289). The plaintiff need not present evidence in each of these categories in order to avoid summary judgment. Aka, 156 F.3d at 1289. Instead, the court should assess the plaintiff’s challenge to the defendant’s explanation in light of the total circumstances of the case. Id. at 1291.” Mianegaz v. Hyatt Corp., 319 F.Supp.2d 13, 19 -20 (D.D.C.,2004).

In order for an employee to successfully prove age discrimination, such employee must show satisfactory performance of his job as well as that he was disadvantaged in favor of a younger employee. “To establish his prima facie case of age discrimination, the plaintiff’s evidence must “create a reasonable inference that age … was a determining factor in the employment decision.” Cuddy v. Carmen, 694 F.2d 853, 856-57 (D.C.Cir.1982). Specifically, the plaintiff must prove, inter alia, that he was performing his job well enough to meet the defendant’s legitimate expectations, and was disadvantaged in favor of a similarly situated younger employee. Reeves, 530 U.S. at 142, 120 S.Ct. 2097; Hall, 175 F.3d at 1077; Paquin, 119 F.3d at 26; Coburn, 711 F.2d at 342.” Mianegaz, 319 F.Supp.2d at 21.

DISCUSSION

Replacement Employee Can Still Be in The Protected Class

Some employers attempt to argue that because the person hired to replace the discharged employee was also in the protected class (age 40 or above) that it did not violate the ADEA. However, courts have held that the replacement employee can still be in the protected class. “Defendant argues that the final element of the prima facie case has not been satisfied because Ranieri’s replacement is also a member of the protected class. However, the Supreme Court has held that this is not a proper element of a prima facie case of age discrimination. “The fact that one person in the protected class has lost out to another person in the protected class is … irrelevant, so long as he has lost out because of his age.” O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). While it is true that an age disparity may not support an inference of age discrimination if there is only an insignificant difference, Id. at 312-13, 116 S.Ct. 1307, the Second Circuit has found that an eight year age difference is significant. Tarshis v. Riese Org., 211 F.3d 30, 38 (2d Cir.2000). Because there is a ten-year age difference between the plaintiff and his replacement, he has set forth the fourth element of a prima facie case of age discrimination.” Ranieri v. Highland Falls-Fort Montgomery School Dist., 198 F.Supp.2d 542, 544 (S.D.N.Y.,2002). See also, Rachid, 376 F.3d at 309 (“When a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer’s decision.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). To demonstrate age discrimination a “plaintiff must show that ‘(1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age.’ ” Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003) (quoting Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir.1993)). That is, regardless of how much younger his replacement is, a plaintiff in the protected class may still establish a prima facie case by producing evidence that he was “discharged because of his age.” Palasota, 342 F.3d at 576 (quotations omitted).”).

Evidence of Age Discrimination

What kind of evidence is necessary to demonstrate that the employer’s employment action was discriminatory based upon age? Although Courts have not always been so precise is setting forth what evidence is necessary, Courts have clearly set forth the type of evidence that is insufficient to demonstrate age discrimination. One such insufficient type of evidence is stray age-based discriminatory remarks. “Stray workplace remarks that have no demonstrated nexus to the personnel action complained of are insufficient to defeat a motion for summary judgment. Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.1998); Ngwu v. Salvation Army, 96 Civ. 0058-59, 1999 WL 2873, at *5 (S.D.N.Y. Jan.4, 1999); O’Connor v. Viacom, Inc., No. 93 Civ. 2399(LMM), 1996 WL 194299, at *5 (S.D.N.Y. Apr.23, 1996). For example, in Woroski v. Nashua Corp., 31 F.3d 105, 108-10 (2d Cir.1994), the Second Circuit sustained the dismissal of an ADEA case on motion where an employer made statements that older employees were not as aggressive as younger employees, and expressed concerns regarding the higher costs of employees with greater seniority. In Warren v. Chemical Bank, No. 96 Civ. 6075(BSJ), 1999 WL 1256249, at *3 (S.D.N.Y. Dec.22, 1999), the court dismissed an ADEA claim on a motion for summary judgment where the only evidence tending to show that age was a factor was a manager’s comment that “she did not know plaintiff was that old.” See also Girma v. Skidmore College, 180 F.Supp.2d 326, 339 (N.D.N.Y.2001) ( “stray remarks of a decision-maker, without a more definite connection to the employment decision, are insufficient to prove a claim of employment discrimination.”); Spence v. Maryland Cas. Co., 803 F.Supp. 649, 668 (W.D.N.Y.1992) (“Isolated and ambiguous statements are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.”).” Ranieri v. Highland Falls-Fort Montgomery School Dist., 198 F.Supp.2d 542, 545 (S.D.N.Y.,2002).

Failure to Hire Case

Courts have set forth the necessary elements of a prima facie case of age discrimination in the failure to hire context. “A prima facie case of age discrimination under the ADEA in a failure to hire context requires a showing that (1) the plaintiff was in the protected age group (over 40), (2) the plaintiff was otherwise qualified for the position, (3) the plaintiff was not hired, and (4) the employer hired a younger person to fill the position. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). The burden then shifts to the employer to set forth evidence explaining ” ‘that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.’ ” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The “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.” Id. at 148, 120 S.Ct. 2097.” Chambers v. Metropolitan Property and Cas. Ins. Co, 351 F.3d 848, 856 (C.A.8 (Minn.),2003).

Reduction in Force Cases (RIF)

One type of age discrimination case that is often litigated is a reduction in force case. In such cases, plaintiffs allege that the decision to terminate them pursuant to the company’s reduction-in-force was discriminatory based upon age. Courts have set forth the elements necessary to prove a prima face case of age discrimination in the reduction-in-force case. “To establish a prima facie case of age discrimination resulting from St. Paul’s reduction in force, Chambers must show that (1) he is 40 years old or older, (2) he was qualified for the job, (3) he was discharged, and (4) age was a factor in the employer’s decision to terminate him. Yates, 267 F.3d at 799. Replacement by a younger person is ordinarily sufficient circumstantial evidence to demonstrate that age was a factor in the termination decision, but not in a reduction in workforce case where those duties either have been eliminated or must be redistributed within the employer’s remaining work force. Id. Instead, to meet the prima facie burden in the reduction in force context, the plaintiff “must come forward with some additional evidence that age played a role in his termination.” Id. “A plaintiff may meet the last requirement by presenting either statistical evidence (such as a pattern of forced early retirement or failure to promote older employees) or ‘circumstantial’ evidence (such as comments and practices that suggest a preference for younger employees).” Hanebrink v. Brown Shoe Co., 110 F.3d 644, 646 (8th Cir.1997).” Chambers v. Metropolitan Property and Cas. Ins. Co, 351 F.3d 848, 855-856 (C.A.8 (Minn.),2003).

The difference between the regular prima facie case and the reduction-in-force prima facie case is that the fourth element requires additional evidence. “In order to establish a prima facie case of age discrimination, plaintiffs must show (1) that they were members of a protected age class; (2) that they were discharged; (3) that they were qualified for the positions they held; and (4) that they were replaced by a younger worker. Cox v. DOT, 53 F.3d 146, 150 (6th Cir.1995). However, in “reduction in force” cases…, the fourth prong is modified so that the plaintiffs must provide “additional direct, circumstantial, or statistical evidence tending to indicate that the employer singled out the plaintiff for discharge for impermissible reasons.” Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 350 (6th Cir.1998). If the plaintiffs have made out a prima facie case of discrimination, the defendant can be awarded summary judgment only if no reasonable jury could conclude that the reasons offered for the plaintiffs’ dismissals were only a pretext hiding a discriminatory motive.” Rowan v. Lockheed Martin Energy Systems, Inc., 360 F.3d 544, 547-548 (C.A.6 (Tenn.),2004). See also, Anderson v. Consolidated Rail Corp., 297 F.3d 242, 250 (C.A.3 (Pa.),2002)(“Thus, to present a prima facie case raising an inference of age discrimination in a reduction in force situation, the plaintiff must show, as part of the fourth element, that the employer retained someone similarly situated to him who was sufficiently younger.”); Long v. Owens Corning , 214 F.Supp.2d 1124, 1129 (D.Kan.,2002)( “To carry this burden in a reduction in force (“RIF”) case, plaintiff must show that (1) she is within the protected age group; (2) she performed satisfactory work; (3) defendant discharged her despite adequate work performance; and (4) the record contains some evidence that in reaching its decision, defendant intended to discriminate. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.), cert. denied, 525 U.S. 1054, 119 S.Ct. 617, 142 L.Ed.2d 556 (1998).”).

What is required to show that the defendant intended to discriminate in a RIF case? Courts have held that “[t]o meet this requirement, plaintiff need not produce evidence that age was a determining factor in defendant’s decision. Beaird, 145 F.3d at 1167. Rather, plaintiff can satisfy the fourth element with evidence that her “employer fired qualified older employees but retained younger ones in similar positions.” Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988). In Beaird, the Tenth Circuit explained that the fourth element in a RIF case “should be understood to parallel the fourth element of McDonnell Douglas by eliminating ‘lack of vacancy’ as a legitimate nondiscriminatory motive for the employment decision.” Beaird, 145 F.3d at 1167. The appellate court further noted that “[o]f course, in a RIF case, the plaintiff cannot actually point to a continuing vacancy because her position has been eliminated. She can, however, point to circumstances that show that the employer could have retained her, but chose instead to retain a younger employee.” Id.” Long v. Owens Corning, 214 F.Supp.2d 1124, 1129 (D.Kan.,2002).

Disparate Impact

In addition to proving intentional discrimination either through direct or indirect evidence, plaintiffs in employment discrimination cases often attempt to show that although the discrimination was not intentional, the effect of the neutral policy or action was in fact discriminatory. This is known as a disparate impact case. Most jurisdictions had held that you could have a disparate impact case under ADEA but some had held otherwise. It was only recently that the Supreme Court of the United States finally determined this issue and held that you could in fact claim disparate impact in age discrimination cases under ADEA. In Smith v. City of Jackson, Miss., 125 S.Ct. 1536, 1542 -1543 (U.S.,2005) the United States Supreme Court recently determined that the ADEA allows for cases claiming a disparate impact upon older workers. The Supreme Court in making this decision relied heavily on the Griggs case in which the court had earlier held that disparate impact cases could be brought under Title VII. “Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be cognizable under the ADEA. Indeed, for over two decades after our decision in Griggs, the Courts of Appeal uniformly interpreted the ADEA as authorizing recovery on a “disparate-impact” theory in appropriate cases.” Smith v. City of Jackson, Miss., 125 S.Ct. 1536, 1542 -1543 (U.S.,2005). See also, Townsend v. Weyerhaeuser Co., 2005 WL 1389197, *13 (W.D.Wis.) (W.D.Wis.,2005)(“ In Smith v. City of Jackson, 125 S.Ct. 1536, 1540, 161 L.Ed.2d 410 (2005), the Supreme Court held that the ADEA authorizes recovery under a disparate impact theory of liability. Disparate impact claims do not require evidence of an employer’s subjective intent to discriminate. Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642, 646, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989). Disparate impact is based on the notion that policies or practices that are neutral on their face but discriminatory in effect violate anti-discrimination statutes. Teamsters v. United States, 431 U.S. 324, 349, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).”).

However, the Supreme Court in the Smith case, held that the disparate impact action under ADEA is more limited than that under Title VII because of the “RFOA” exception under ADEA. “In Smith, 125 S.Ct. at 1543-44, the Court noted that disparate impact liability under the ADEA is narrower than under other discrimination statutes such as Title VII because of the ‘RFOA provision’ in the ADEA, which exempts an employer from liability for any prohibited action ‘where the differentiation is based on reasonable factors other than age.’ 29 U.S.C. § 623(f)(1). Certainly, an employer that decides to terminate an employee to relieve itself of the burden of that employee’s high salary or health care costs has based its decision on ‘reasonable factors’ other than the employee’s age.” Townsend v. Weyerhaeuser Co., 2005 WL 1389197 *14 (W.D.Wis.) (W.D.Wis.,2005).

The courts have set forth the requirements for proving a prima-facie case of disparate impact discrimination. “To establish a prima facie case of disparate impact, a plaintiff must “isolate and identify a specific employment practice that is allegedly responsible for any observed statistical disparities,” Cerutti, 349 F.3d at 1067, and “establish a causal connection between the employment practice and the statistical disparity, offering statistical evidence of a kind and degree sufficient to show that the practice in question has cause the exclusion of applicants for jobs or promotion because of their membership in a protected group, Bennett v. Roberts, 295 F.3d 687, 697 (7th Cir.2002) (citations and quotations omitted).” Townsend v. Weyerhaeuser Co.,. 2005 WL 1389197, *13 (W.D.Wis.) (W.D.Wis.,2005). See also, Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (C.A.9 (Idaho),2003)(“To make out a prima facie case of disparate impact, Pottenger must show “(1) the occurrence of certain outwardly neutral employment practices, and (2) a significantly adverse or disproportionate impact on persons of a particular [age] produced by the employer’s facially neutral acts or practices.” Katz, 229 F.3d at 835 (quoting Palmer v. United States, 794 F.2d 534, 538 (9th Cir.1986)) (alteration in original- “A disparate impact claim must challenge a specific business practice.”).

HOSTILE WORK ENVIRONMENT

As with other employment discrimination statutes, plaintiffs claiming age discrimination often attempt to claim that they were subjected to a hostile work environment or age-based harassment. It is not yet clear that all jurisdictions allow plaintiffs to allege hostile work environment cases based upon age discrimination under ADEA. However, most jurisdictions either allow such actions or decide such cases even though there has never been a decision holding definitively that such actions are allowed under ADEA in their jurisdiction. “Although it is as yet unsettled whether the Third Circuit recognizes hostile environment claims in ADEA cases, it appears that to the extent that it does, there are five elements to such a claim: (1) intentional discrimination because of age which is (2) pervasive and regular, (3) has detrimental effects that (4) would be suffered by a reasonable person of the same age in the same position, and (5) that respondeat superior liability exists. Jackson v. R.I. Williams & Associates, Inc., Civ. A. No. 98-1741, 1998 WL 316090, 1998 U.S. Dist. LEXIS 8805 (E.D.Pa. June 8, 1998); Tumolo v. Triangle Pacific Corp., 46 F.Supp.2d 410, 412 (E.D.Pa.1999). Generally speaking, to be successful in such hostile environment actions, a plaintiff must demonstrate that the workplace is “permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993), quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986).” Glanzman v. Metropolitan Management Corp., 290 F.Supp.2d 571, 581 (E.D.Pa.,2003).

“To establish a hostile work environment claim based on race or age, plaintiff must prove (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment complained of was based on race or age; (4) the harassment complained of affected a term, condition, or privilege of employment; and (5) the employer knew or should have known of the harassment in question and failed to take prompt remedial action. The harassment is considered to affect a term, condition, or privilege of employment only if it is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. In determining whether a workplace constitutes a hostile work environment, courts must consider the following circumstances: ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” McNealy v. Emerson Elec. Co., 306 F.Supp.2d 613, 622 (M.D.La.,2004).

Although less prevalent than sexual harassment hostile work environment claims, some plaintiffs allege that they have been harassed based on age in violation of the ADEA. The Supreme Courts and some districts have not directly decided the issue of whether harassment claims may be brought under ADEA. “The United States Supreme Court and the Fifth Circuit have not directly decided whether the hostile work environment analysis may be extended to claims brought under the ADEA. See Hernandez v. Department of Treasury, 2003 WL 22715648, *6 n. 7 (E.D.La.2003). Defendant contends plaintiff’s hostile work environment claims are based on age, in addition to race, in its motion for summary judgment. A minority of lower courts in the Fifth Circuit have imported the hostile work environment requirements for sexual and race harassment to ADEA claims. See e.g. Lacher v. West, 147 F.Supp.2d 538 (N.D.Tex.2001). The Court need not address this minor issue because, even if the hostile work environment analysis were to be applied to plaintiff’s ADEA claim, plaintiff still fails to satisfy the requirements necessary to sustain such a claim.” McNealy v. Emerson Elec. Co., 306 F.Supp.2d 613, 622 (M.D.La.,2004).

Some courts have not yet determined that hostile work environment claims can be brought under ADEA. For instance, “[t]he Third Circuit has not addressed whether a claim based on hostile work environment is available under the ADEA. See Tumolo v. Triangle Pacific Corp., 46 F.Supp.2d 410, 412 n. 2 (E.D.Pa.1999). Courts that have considered an age based hostile work environment claim have similarly required the plaintiff to show that she is over forty; that she was subject to harassment; and that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment. See Larcher v. West, 147 F.Supp.2d 538, 543 (5th Cir.2001). See also Burns v. AAF-McQuay, Inc., 166 F.3d 292, 294 (4th Cir.1999) (reciting elements but declining to decide whether such a claim would be viable); Crawford v. Medina Gen. Hosp., 96 F.3d 830, 834 (6th Cir.1996). Nerosa v. Storecast Merchandising Corp. , 2002 WL 1998181, *4 (E.D.Pa.) (E.D.Pa.,2002).

In a hostile work environment age-based claim, the plaintiff would be required to prove that the employer was liable for the co-worker’s harassment. Courts have set forth precise requirements for proving this. “To establish vicarious liability of an employer for the actions of a co-worker, a plaintiff must show that the employer failed to provide a reasonable avenue for complaint or was aware of the alleged harassment and failed to take appropriate remedial action. See Weston, 251 F.3d at 427. When an actionable hostile work environment is created by a supervisor with immediate or successively higher authority over the plaintiff, the burden is on the employer to show it exercised reasonable care to prevent and promptly correct harassing behavior and the plaintiff unreasonably failed to pursue corrective opportunities it provided or otherwise to avoid harm, unless the supervisor’s harassment culminates in a tangible adverse employment action in which case vicarious liability is established. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).” Nerosa v. Storecast Merchandising Corp., 2002 WL 1998181, *4 (E.D.Pa.) (E.D.Pa.,2002).

In the Nerosa case, the court held that claims that “younger employees were given preferential job assignments and greater assistance, that Storecast failed to train its employees in prevention of age discrimination and that Storecast failed to take prompt remedial action to stop age discrimination were, [even] assuming an age-based hostile work environment claim is cognizable, …far short of stating… a claim of age-based hostile work environment.” Nerosa v. Storecast Merchandising Corp. 2002 WL 1998181, *4 (E.D.Pa.) (E.D.Pa.,2002).

Even if a case has not been decided in your jurisdiction holding that plaintiffs can bring a hostile work environment claim under ADEA, most courts assume that one can be brought. This is just what happened in Racicot v. Wal-Mart Stores, Inc., 2005 WL 1560332, *3 (7th Cir.(Ind. (C.A.7 (Ind.),2005) in which the plaintiff alleged that she had been subjected to age harassment as a result of comments that were made to her in the workplace including comments about “the propriety of women working at her age and the fact that she could pick up heavy boxes if she were younger”. The court noted that “[t]his court has assumed, but never decided, that plaintiffs may bring hostile environment claims under the ADEA. Bennington v. Caterpillar, Inc., 275 F.3d 654, 660 (7th Cir.2001); Halloway v. Milwaukee County, 180 F.3d 820, 827 (7th Cir.1999).” Id. at 2005 WL 1560332, *3 (7th Cir.(Ind. (C.A.7 (Ind.),2005). The court in Racicot held that it was irrelevant because even assuming that age-based harassment claims were cognizable, the plaintiff had failed to show comments or actions that were severe and pervasive enough to demonstrate age-based harassment. “We need not decide this issue in the instant case because even assuming such a claim to be cognizable, Racicot fails to provide evidence to support such a claim. Condra’s and Simpson’s isolated comments about Racicot’s age were neither severe or pervasive enough to create an objectively hostile work environment. Bennington, 275 F.3d at 660. As with Racicot’s sexual harassment claim, the statements made by Condra and Simpson are examples of boorish behavior but not actionable age harassment.” Id.

AGE DISCRIMINATION AS IT RELATES TO YOU IN THE WORKPLACE

What To Do If You Have Been Discriminated Against Based Upon Age
If you believe that you have been the victim of age discrimination you should attempt to consult with legal counsel. Please call Mark Carey at 203-255-4150 or mcarey@capclaw.com. If you are unable to obtain local counsel, you should file a claim yourself with either the local fair employment agency in your jurisdiction and/or the EEOC. www.eeoc.gov. There are strict timelines for filing such a claim so you should file your claim as soon as possible. You should also be aware of any adverse action that your employer takes against you once you have filed such a claim. If you believe that such action was in retaliation for your having filed a claim you should submit another claim for retaliation. For more information on this subject consult our retaliation chapter herein.

What to Do If You Have Been Accused of Discriminating Against An Employee Based Upon Age
Usually your company’s human resource or legal department will conduct an investigation into the employee’s claim and provide the employee and you with the results of the investigation. The company may offer to represent both you and the company. You should keep in mind that yours and the company’s interests may diverge at some point along the way so that it may be best for you to retain your own legal counsel from the beginning. ADEA does not provide for individual liability for managers in these situations. “The Seventh Circuit is not the only Circuit to reject the concept of supervisor liability under the ADEA. “[T]he appellate courts consistently hold that liability [in employment discrimination law] should fall solely to the employer, thus prohibiting individual liability ….” Tammi J. Lees, The Individual vs. The Employer: Who Should be Held Liable in Employment Discrimination Law?, 54 CASE W. RES. L. REV. 861, 863 (2004). There is an “emerging view among federal circuit courts of appeal [that] takes the position that Congress did not intend to allow for personal liability under Title VII or the ADEA.” David J. Hanus, Individual Supervisor Liability under Title VII and the ADEA, 45 DRAKE L. REV. 999, 1001 (1997). For example, the following Circuits have all firmly rejected supervisor liability under the ADEA: the Fifth Circuit, in Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.1996); the Eleventh Circuit, in Smith v. Lomax, 45 F.3d 402, 403 n. 4 (11th Cir.1995); the Ninth Circuit, in Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir.1993). The reasoning of these Circuits is similar to the Seventh Circuit’s: Congress simply did not intend for individual liability under Title VII, the ADA, or the ADEA. See, e.g., Stults, 76 F.3d at 655 (noting the similarities in statutory language between Title VII and the ADEA, and holding that there is no individual liability under the ADEA).” Cheng v. Benson, 358 F.Supp.2d 696, 700 (N.D.Ill.,2005). However, some state human rights laws (such as New York’s) may provide for individual liability. ‘Individual liability is sometimes possible, however, under New York’s Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n. 1 (2d Cir.2001); Tomka, 66 F.3d at 1317.’ Mandell v. County of Suffolk ,316 F.3d 368, 377 (C.A.2 (N.Y.),2003). Since you may have some exposure it may be worth consulting with legal counsel regarding the alleged claim against you.

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