3.4 Employer’s Defenses and Justifications

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

3.4 EMPLOYER'S DEFENSES AND JUSTIFICATIONS

3.401 Introduction. Once the plaintiff has established a prima facie case of discrimination by a preponderance of the evidence, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. The ADEA stipulates four affirmative defenses to an ADEA action. There are three additional ways frequently relied on to refute a plaintiff's prima facie case.

3.402 Statutory Defenses.

A. Bona Fide Occupational Qualification (BFOQ). If age was made an express employment criterion, the employer will advance the BFOQ defense. Under the ADEA, if a distinction made upon age is "reasonably necessary to the normal operation of the particular business," the criterion does not violate the ADEA. ⁵⁵

BFOQs are broken down into two elements:

1. The criterion must be reasonably necessary to the essence of the business; and

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2. The employer must have a factual basis for believing that all or substantially all persons within the same class would be unable to perform the job's duties safely and efficiently or that it would be extremely difficult, impracticable, or impossible to test persons over the age limit on an individualized basis. ⁵⁶

B. Bona Fide Employee Seniority System. An employer may use the terms of a bona fide seniority system, if the system is not used to circumvent the requirements of the ADEA. ⁵⁷ But no such system can call for the mandatory retirement of protected workers because of their age. Regardless of the date of adoption, all seniority systems must comply with the provisions of the ADEA. ⁵⁸ A "reverse seniority" system that reduces benefits and tenure with length of service does not meet the definition of "seniority system." ⁵⁹

C. Factor Other Than Age. If a defendant can show that an alleged discriminatory practice is a business necessity, that showing will successfully defend against a disparate impact claim. ⁶⁰

A business necessity is often referred to as a "reasonable factor other than age." ⁶¹ In essence, the defendant is saying, "we did not take age into consideration but instead relied on this reasonable factor." Factors other than age may include, among other things, physical fitness, education requirements, quantity of production, and vision and hearing requirements. ⁶²

Firing an employee for the sole reason that his or her salary is too high does not violate the ADEA per se. ⁶³ The United States Supreme Court has

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stated "that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age[,]" and "a disparate treatment claim cannot succeed unless the employee's protected trait [age] actually played a role in that process and had a determinative influence on the outcome." ⁶⁴

D. Bona Fide Employee Benefit Plans. An employer may observe the terms of a bona fide retirement, pension, or insurance plan, provided the plan is not a subterfuge to avoid the purposes of the ADEA. ⁶⁵ This provision does not, however, justify the failure to hire any individual or permit the involuntary retirement of any individual because of age. The Equal Employment Opportunity Commission (EEOC) has construed this to permit an employer to reduce benefits to workers based on age only where the age of the employee has accounted for increased costs. For example, the reduction of life insurance coverage for an older worker is permissible as long as that reduction is caused by an increase in the cost of coverage.

The Supreme Court has held that, for purposes of the ADEA, age and pension status remain analytically distinct concepts. When an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must adduce sufficient evidence to show that the differential treatment was "actually motivated" by age, not by pension status. ⁶⁶

3.403 Refuting Employee's Prima Facie Case.

A. No Discrimination. An employer is always free to assert that there has been no discrimination in the employment action taken. If an employer can offer some evidence that its actions were not based on age, this will rebut the plaintiff's prima facie case. Since the burden of proof remains

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