Age Discrimination
| Author | Kevin R. Culhane |
| Pages | 5-43 |
16-5
Chapter 16
Age Discrimination
§1600 Introduction
§1610 Basic Information
§1620 Terms of Employment
§1630 Age Discrimination in Employment
§1640 Defenses
§1650 Claim of Pretext
§1660 Additional Defenses and Denials
§1670 Damages in ADEA Age Discrimination Cases
§1680 Investigatory Interrogatories
§1690 Due Diligence in Preparation of Response
§1695 Deposition Checklists
§1600 Introduction
§1601 Elements of Plaintiff’s Cause of Action
§1601.1 Membership in Protected Group
§1601.2 Employee/Applicant Job Qualifications
§1601.3 Adverse Effect
§1601.4 Hire/Replacement With Similar Qualifications
§1602 Employer Defenses
§1603 Pretext
§1604 Remedies
§1605 Other Theories of Recovery
§1606 Definitions
§1610 Basic Information
§1611 Information Regarding Employer
§1611.1 Business Format
§1611.2 Personal Data
§1611.3 Similar Claims and Legal Proceedings
§1612 Information Regarding Plaintiff
§1612.1 Employment History
§1612.2 Prior Age Discrimination Claims
§1612.3 Miscellaneous Personal Information
§1620 Terms of Employment
§1621 Plaintiff to Defendant
§1621.1 Hiring of Plaintiff
§1621.2 Written Employment Agreement
§1621.3 Oral Employment Agreement
Model InterrogatorIes 16-6
§1622 Defendant to Plaintiff
§1622.1 Fact of Hire
§1622.2 Oral Employment Agreement
§1630 Age Discrimination in Employment
§1631 Occurrence lnterrogatories – Plaintiff to Defendant
§1631.1 Termination of Employment
§1631.2 Failure to Promote
§1631.3 Failure to Retrain
§1631.4 Refusal to Hire
§1631.5 Involuntary Retirement
§1632 Occurrence lnterrogatories – Defendant to Plaintiff
§1632.1 Termination of Employment
§1632.2 Failure to Promote
§1632.3 Failure to Retrain
§1632.4 Refusal to Hire
§1632.5 Involuntary Retirement
§1640 Defenses
§1641 Plaintiff to Defendant
§1641.1 Bona Fide Occupational Qualification
§1641.2 Reasonable Factor Other Than Age
§1641.3 Reduction in Force
§1641.4 Bona Fide Seniority System
§1641.5 Discharge For Good Cause
§1642 Employer Defenses-Defendant to Plaintiff
§1642.1 Bona Fide Occupational Qualification
§1642.2 Reasonable Factor Other than Age
§1642.3 Reduction in Force Termination
§1642.4 Bona Fide Seniority System
§1642.5 Good Cause For Termination
§1650 Claim of Pretext
§1660 Affirmative Defenses and Denials
§1661 Plaintiff to Defendant
§1661.1 Defendant’s Contentions
§1661.2 Failure to Exhaust Internal Remedies
§1661.3 Failure to Exhaust Administrative Remedies
§1661.4 Collateral Estoppel
§1662 Defendant to Plaintiff
§1662.1 Failure to Exhaust Internal Remedies
§1662.2 Failure to Exhaust Administrative Remedies
§1670 Damages in ADEA Age Discrimination Cases
§1671 Plaintiff to Defendant
§1671.1 Back Pay
§1671.2 Pension and Retirement
§1671.3 Vacation and Sick Leave
§1671.4 Medical Insurance Coverage
§1671.5 Overtime
§1671.6 Front Pay
§1671.7 Liquidated Damages – Willfulness
§1671.8 Defendant’s Contentions re: Plaintiff’s Failure to Mitigate Damages
§1672 Defendant to Plaintiff
§1672.1 Back Pay
§1672.2 Pension and Retirement
§1672.3 Vacation and Sick Leave
§1672.4 Overtime
16-7 age dIscrIMInatIon §1600
§1672.5 Other Fringe Benefits
§1672.6 Plaintiff’s Contentions re: Calculation of Front Pay Claim
§1672.7 Plaintiff’s Contentions re: Willfulness
§1672.8 Failure to Mitigate Damages
§1680 Investigatory Interrogatories
§1681 Witnesses
§1682 Surveillance
§1683 Insurance
§1690 Due Diligence in Preparation of Response
§1695 Deposition Checklists
§1696 Deposition of Defendant
§1696.1 Defendant – General Background
§1696.2 Defendant’s Business Structure
§1696.3 Terms of Plaintiff’s Employment
§1696.4 Facts Relating to Alleged Discrimination in Employment
§1696.5 Defenses in Age Discrimination Cases
§1696.6 Damages in Age Discrimination in Employment Act Cases
§1696.7 Statements by Parties, Witnesses
§1696.8 Surveillance Conducted by Defendant
§1696.9 Insurance
§1697 Deposition of Plaintiff
§1697.1 Plaintiff – General Background
§1697.2 Terms of Plaintiff’s Employment
§1697.3 Facts Relating to Alleged Discrimination in Employment
§1697.4 Defenses in Age Discrimination Cases
§1697.5 Affirmative Defenses and Denials
§1697.6 Damages in Age Discrimination in Employment Act Cases
§1697.7 Statements by Parties, Witnesses
§1697.8 Surveillance Conducted by Opposing Party
§1600 Introduction
The Age Discrimination in Employment Act (ADEA) is an outgrowth of early attempts to include age as a pro-
tected classification under Title VII of the Civil Rights Act of 1964. Based upon the conclusion that Congress had
insufficient information regarding the nature and extent of age discrimination, age was not included as a protected
class under Title VII. Instead, the Secretary of Labor was directed to study the factors that might result in employment
discrimination on the basis of age. This approach resulted from a recognition that discrimination based on age was
qualitatively different from other types of discrimination prohibited by Title VII; age discrimination is predicated on
false preconceptions regarding the ability of older workers rather than the type of group animus that characterized
other forms of discrimination.
The Secretary of Labor’s ultimate report included extensive findings pertaining to the prevalence of age discrim-
ination, the existence of subjective stereotypes pertaining to the abilities of older workers, and the harmful effects
of age discrimination upon the work force and the national economy. As a result, Congress adopted the ADEA (the
The ADEA is somewhat of a hybrid statute, deriving its substantive provisions from Title VII of the Civil Rights
Act of 1964 and its procedural provisions from the Fair Labor Standards Act (FLSA). The Act’s historical lineage is
primarily important because case law interpreting conduct prohibited by Title VII, and the procedural structure of the
FLSA, are particularly relevant to age discrimination cases brought under the ADEA. See, e.g., Trans World Airlines,
Inc. v. Thurston, 469 U.S. 111, 105 S. Ct. 613 (1985).
The ADEA prohibits employers, labor organizations, employment agencies, and state and political subdivisions
from discriminating in employment decisions on the basis of age. See 29 U.S.C. § 623(a)(1) (1984). The Act extends
its protections to all employees over the age of 40, with no upper age limit on the prohibition. For purposes of the
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