The Age Discrimination in Employment Act of 1967: issues litigated at the Supreme Court level.

• Author: Holliday, Candice P.
• Position: Labor and Employment Law

In 2000, the U.S. Bureau of the Census estimated that 12.4 percent of the U.S. population was age 65 or older. (1) Between the years 2010 and 2030, when the post-World War II baby boom population begins to retire, the elderly will comprise an estimated 21.8 percent of the total population. (2) The issue of older Americans in the workforce is heightened because of the current downturn of the American economy. Prospective employees are seeking a limited number of jobs. Employers are cutting available jobs. These pressures can provide the kindling for age discrimination in the workplace.

The Age Discrimination in Employment Act of 1967 (ADEA) was created to combat arbitrary discrimination in the workplace because of age. (3) Specifically, under the ADEA, an employer may not "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". (4) Congress passed the ADEA because of its concern "that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes." (5) Age discrimination was not included in Title VII of the Civil Rights Act of 1964 because Congress understood that there are legitimate reasons--for instance, increased pension costs, as well as invidious reasons--for employment decisions based on age. (6)

The ADEA specifically protects individuals--both employees and job applicants--who are 40 years of age or older, from age discrimination in employment. (7) Specifically, it is unlawful to discriminate against a protected individual "with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training." (8) The ADEA applies to employers with 20 or more employees, including federal, state, and local governments, employment agencies, and labor organizations. (9) Congress placed the Equal Employment Opportunity Commission (EEOC) in charge of implementing the ADEA. (10)

This article will examine the Supreme Court's interpretation of the ADEA for the past three decades. The following will be examined: 1) substantive claims available under the ADEA, 2) the ADEA's affirmative defenses, and 3) procedural issues under the ADEA. It is the author's hope that examining the Supreme Court's interpretation of ADEA issues will illuminate the boundaries of age discrimination protection at an economic time crucial to such an understanding.

Interpretation of Substantive Claims Under ADEA

* Disparate Impact Claims--Under the disparate treatment theory of discrimination, "an employer simply treats some people less favorably than others" because of some protected characteristic. (11) In Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), the court stated that "[p]roof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." (12) There is no question that the disparate treatment theory of discrimination is available under the ADEA. (13) The ADEA clearly states that it is illegal for an employer "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." (14) Liability under the ADEA requires that age actually motivate the employer's decision, whether formally or informally. (15)

In Hazen Paper, the Supreme Court found that discharging a 62-year-old employee to prevent his pension benefits from vesting was not disparate treatment under the ADEA. (16) Specifically, it held that "interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service" does not violate the ADEA. (17) In other words, although years of service can be a proxy for age, in this case, it was not seen as being motivated by such. (18) In Kentucky Retirement Systems v. Equal Employment Opportunity Commission, 128 S. Ct. 2361 (2008), the Supreme Court again found no violation of the ADEA. The court focused on the expressed purpose of the plan to decide that "differences in treatment were not 'actually motivated by' age." (19) Furthermore, the majority stated that although some older workers are disadvantaged because of the plan, other older workers are advantaged by the plan, thus, confirming "the underlying motive is not an effort to discriminate 'because of ... age.'" (20)

Under the disparate impact theory of discrimination, an employment practice that is facially neutral in its treatment of different groups, but in fact falls more harshly on one group versus another (and cannot be justified by business necessity) is unlawful. (21) Because the text of 29 U.S.C. [section] 623(a)(2) focuses "on the effects of the action on the employee rather than the motivation for the action of employer," no proof of discriminatory motive for disparate impact claims is needed. (22) In Smith v. City of Jackson, Mississippi, 544 U.S. 288 (2005), the Supreme Court held that the ADEA's prohibition against actions that "deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age" recognized disparate impact claims. (23) Recognition of disparate impact claims under the ADEA, however, is still hotly contested by...