Chapter 4 - § 4.3 • DEFENSES

• Jurisdiction: Colorado

§ 4.3 • DEFENSES

§ 4.3.1—Administrative Exhaustion

As in other types of discrimination cases, an ADEA plaintiff must administratively exhaust his or her claims by filing a timely charge of discrimination alleging each discrete discriminatory act alleged. Exhaustion is not a jurisdictional prerequisite to suit, however, but rather a "claim-processing rule" that may be forfeited by the employer in litigation. Fort Bend Cty., Texas v. Davis, 139 S. Ct. 1843, 1850 (2019) (interpreting Title VII's exhaustion requirement using reasoning equally applicable to ADEA); see also Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 395 n.11 (1982) (noting that in amending the charge-filing requirement of the ADEA, a Congressional report stated that exhaustion "is not a jurisdictional prerequisite to maintaining an action under the ADEA and . . . therefore equitable modification for failing to file within the time period will be available to plaintiffs under this Act." (quotation omitted)).

§ 4.3.2—Bona Fide Occupational Qualifications

The ADEA explicitly allows employers to perform otherwise discriminatory acts based on age when age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the employer's business. 29 U.S.C. § 623(f)(1). To establish the BFOQ exception, an employer must show that it was reasonably necessary to the essence of a particular business and either that there is a factual basis to believe that most members of the protected group cannot perform the job safely and efficiently, or that the excluded class members cannot be evaluated on an individual basis. W. Air Lines, Inc. v. Criswell, 472 U.S. 400 (1985). The exception is narrowly construed by the courts. See, e.g., Erickson v. Bd. of Governors, 207 F.3d 945, 957 (7th Cir. 2000); Coupe v. Fed. Exp. Corp., 121 F.3d 1022, 1026 (6th Cir. 1997). For instance, an employer's concern about employee fitness is not considered "reasonably necessary" to a business if fitness is not necessary to the job. EEOC v. Tenn. Wildlife Res. Agency, 859 F.2d 24 (6th Cir. 1988).

Much of the litigation concerning the BFOQ exception under the ADEA involves situations where safety is the issue. Although safety considerations may justify holding employees to stringent standards, an employer may not automatically assume that employees beyond a certain age are unqualified. Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). The EEOC states that, where safety is the issue, the employer must prove that the proposed BFOQ achieves the goal of safety and that there is no other acceptable alternative available that would...