Age Discrimination in Employment Act

Author:George Rutherglen

Prohibitions and Exceptions

The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age against anyone who is at least 40 years old.[712] The ADEA was enacted following the Civil Rights Act of 1964, on the basis of a report commissioned by Congress on employment discrimination against older workers. It differs from Title VII, however, in extending the prohibition against discrimination to grounds not generally recognized in the Constitution. Unlike race or sex, age can serve as the basis for government classifications whenever it rationally serves a legitimate government interest.[713] Consistently with this lenient standard of judicial review, the ADEA does not cover individuals under the age of 40 at all, and even among covered individuals, the ADEA only protects them from discrimination on the ground that they are too old, not that they are too young.[714]

As originally enacted, the ADEA contained an upper limit on the age of those covered, but it has been amended several times, first raising this limit and then abandoning it entirely.[715] The Act applies to all private employers with at least twenty employees, to state and local government, and to most of the federal government,[716] but not to elected officials or certain of their appointees.[717]

The provisions of the ADEA, both substantive and procedural, reflect a combination of Title VII and the Equal Pay Act. For instance, like the Equal Pay Act, the ADEA requires discrimination in wages to be eliminated only by raising wages.[718] The ADEA also resembles Title VII in the method of proving individual claims of disparate treatment, in particular, by using the structure of burdens of production set forth in McDonnell Douglas Corp. v. Green.[719] The ADEA is complicated, however, by defenses for employment decisions "based on reasonable factors other than age" and for discipline or discharge "for good cause."[720] If these were genuine affirmative defenses, they would shift the burden of proof onto the defendant,[721] but it is more likely, following the model of Title VII, that they do so only if the plaintiff has already proved that age was a factor in the employment decision.[722]

Exactly how this question should be resolved depends also on how amendments to Title VII, but not to the ADEA, by the Civil Rights Act of 1991 affect the relationship between these two statutes.[723] In particular, pretext and mixed-motive cases might be treated slightly differently under the ADEA than under Title VII because of these provisions.[724]

Class-wide claims can also be proved by statistical evidence under the ADEA, as they can under Title VII, but the theory of disparate impact is less firmly established under the ADEA. The theory of disparate impact has been used when the disparity is large or when there is evidence of intentional discrimination.[725] In the absence of such evidence, the use of the theory of disparate impact has been questioned, most recently by the Supreme Court in Hazen Paper Co. v. Biggins.[726]

This question again is further complicated by amendments made to Title VII, but not to the ADEA, by the Civil Rights Act of 1991. In particular, Congress codified the theory of disparate impact only under Title VII.[727] This disparity in the two statutes has led to a conflict among the circuits on the application of the theory of disparate impact to claims under the ADEA,[728] and a case is now pending in the Supreme Court to resolve this issue.[729]

Hazen Paper did resolve one question: whether a finding of intentional discrimination can be based solely on the employer's reliance on a factor correlated with age, in that case, the imminent vesting of pension rights. Although a discharge for this reason violates the Employee Retirement Income Security Act (ERISA),[730] it supports a finding of age discrimination only with additional evidence that age was a factor in the employer's decision.[731] For similar reasons, some lower courts have held that the higher salary of older workers who have been discharged or laid off does not support an inference of age discrimination.[732]

Like both Title VII and the Equal Pay Act, the ADEA contains defenses for bona fide seniority systems[733] and for reliance on administrative interpretations.[734] Also like Title VII, the ADEA generally exempts from coverage the operation of foreign corporations in foreign countries, unless they are controlled by an American employer.[735] The ADEA also contains some unique exceptions: for certain executives over the age of 65,[736] and for administratively created exceptions, which have been limited to programs of public employment for "the long-term unemployed, handicapped, members of minority groups, older workers, or youth."[737] Three different occupational groups-firefighters, law enforcement officers, and tenured professors at colleges and universities-have been subject to changing statutory provisions.

The original exceptions for these occupations allowed employers to impose maximum ages of employment, or what is virtually the same thing-ages of mandatory retirement.[738] These exceptions expired at the end of 1993, only to be reinstated later in different form. States and localities can now set a maximum age for employment of firefighters and law enforcement officers, as well as an age for mandatory retirement.[739] Colleges and universities cannot impose mandatory retirement upon tenured professors, but they can increase the incentives for early retirement.[740]

Special provisions also apply to "any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter.""[741] Moreover, "no such employee benefit plan shall excuse the failure to hire any individual, and no such seniority system or employee benefit plan shall require or permit the involuntary retirement for any [covered individual] because of the age of such individual."[742] This qualification was added after -the provision had been interpreted to permit retirement plans that required the retirement of covered individuals.[743] Congress rejected this interpretation by drastically narrowing the scope of the exception. When the Supreme Court continued to read the exception to allow any form of age discrimination within a pension plan (but not outside it), Congress again amended the statute to narrow the exception.[744] The amendment allows classifications on the basis of age only if they are cost-justified according to specified EEOC regulations or if they are part of "a voluntary early retirement incentive plan consistent with the relevant purpose or purposes of this chapter."[745] Other, highly technical provisions apply to pension plans and to employee benefit plans generally.[746] All of these provisions have the common purpose of protecting the benefits available to older workers while recognizing the needs of employers to provide an orderly transition to retirement.

Another provision, closely related in function to those regulating pension plans, concerns waiver of claims under the ADEA.[747] All...

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