A Reason to Discriminate: Curtailing the Use of Title VII Analysis in Claims Arising Under the ADEA

• Author: Katherine Krupa Green
• Position: J.D./B.C.L. Candidate, May 2005, Paul M. Hebert Law Center, Louisiana State University
• Pages: 411-464

J.D./B.C.L. Candidate, May 2005, Paul M. Hebert Law Center, Louisiana State University. I would like to express my thanks to my husband Walt, for his patience, support, and understanding, not only while I was working on this paper, but throughout my entire law school career. I would also like to thank Professor William Corbett for providing me with such a challenging topic and offering me invaluable insight and encouragement throughout the writing process.

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"There is . . . no harsher verdict in most men's lives than someone else's judgment that they are no longer worth their keep. It is then, when the answer at the hiring gate is 'You're too old,' that a man turns away . . . finding 'nothing to look forward to with pride, nothing to look forward to with hope.'" ¹

I Introduction

During the 2003-2004 term, the United States Supreme Court decided that reverse age discrimination claims were not viable under the Age Discrimination in Employment Act (ADEA).² The ADEA was enacted in 1967 on the heels of the Civil Rights Act of 1964.³ One of the reasons Congress enacted the ADEA was to promote the hiring of older persons within the workplace by prohibiting employers from terminating or refusing to hire a person solely based upon his or her old age.⁴ Thus, the ADEA offers statutory protection to individuals forty years of age and older from employment discrimination based upon their age.⁵Page 412

In the late 1960s and 1970s, reverse discrimination claims began to appear as a result of the civil rights revolution.⁶ Reverse discrimination occurs when employers adversely target employees, who are members of the traditionally accepted majority class, through discriminatory actions because of their majority status.⁷ For instance, in McDonald v. Santa Fe Trail Transportation Co.⁸ three employees were caught stealing from their employer's cargo.⁹ The two plaintiffs, both Caucasian employees, sued their former employer for racial discrimination when they were terminated and an African-American employee, who had committed the same offense, was not discharged.¹⁰ The Court, relying upon the Congressional intent underlying Title VII and Equal Employment Opportunity Commission interpretations of the statute, concluded that Title VII prohibits all discriminatory employment practices made on the basis of race.¹¹ Hence, the Court held that the plaintiff employees inPage 413 McDonald had stated a cause of action.¹²

The McDonald decision has provided legal footing for plaintiffs in reverse discrimination claims to stand upon. In fact, it has been suggested that reverse discrimination claims are now "rampant" within our society.¹³ According to the Equal Employment Opportunity Commission, the number of reverse discrimination claims filed by white employees nearly doubled from ten percent to approximately seventeen percent between 1991 and 1996.¹⁴ It has also been suggested that with demographic changes in the American workforce contributing to more diverse workplaces, an increase in the number of reverse discrimination claims filed is highly probable.¹⁵

The purpose of this paper is to suggest that, despite their similarities, there are some significant differences between discrimination claims arising under Title VII and those arising under the ADEA. Because of these differences, the Supreme Court correctly held that reverse age discrimination claims should not be permitted under the ADEA.Page 414

Initially, this paper provides the historical background and development of both the ADEA and Title VII. In Part II, Hazen Paper Company v. Biggins¹⁶ is discussed for its significance as the first indication by the Supreme Court that ADEA claims differ from Title VII claims. More specifically, in Hazen, the Court implied that while disparate impact may be applicable under Title VII, it might not be suitable for the ADEA. Part III analyzes the Sixth Circuit Court of Appeals' analysis of General Dynamics Land Systems, Inc. v. Cline¹⁷ and subsequently presents the United States Supreme Court's opinion on the case. The Sixth Circuit held that the ADEA provides a cause of action for employees within the protected class who allege claims of age discrimination against their employer because their employer treated older employees more favorably.¹⁸ However, after granting certiorari, the Supreme Court reversed the Sixth Circuit's decision in General Dynamics, holding that reverse age discrimination claims are not viable under the ADEA.¹⁹ In order to evaluate the propriety of the Supreme Court's holding, the ADEA is compared with the Americans with Disabilities Act (ADA)²⁰ because of analogous difficulties presented by the class of persons protected under each statute. In addition, two distinct discrimination theories, the formal equality theory and the protected class theory, will be explored to assess whether reverse age discrimination claims are plausible. This theoretical analysis will be used to buttress the Supreme Court's decision to reverse the Sixth Circuit's decision in General Dynamics, thereby prohibiting reverse age discrimination claims. Ultimately, this paper will conclude that the Supreme Court's decision was proper and has curtailed the future expansion of Title VII jurisprudence into the unique realm of age discrimination.

II Background: Title VII and The Age Discrimination in Employment Act

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A Impetus for Enacting the ADEA

Like most anti-discrimination statutes, the impetus for and the history of the ADEA can be traced to a single revolutionary enactment: Title VII of the Civil Rights Act of 1964. Title VII served as the first federal legislation prohibiting discrimination in the hiring, firing, promoting, training, and compensating of employees for the reason of race, color, sex, national origin, or religion.²¹ The legislative history indicates that Congress was particularly interested in eliminating the discriminatory treatment experienced by African-Americans.²² Overall, however, Title VII served as the nation's first legislation requiring employers to make employment decisions about individuals strictly based upon their ability, as opposed to protected characteristics such as race or gender.²³

Congress did not prohibit age discrimination in the Civil Rights Act of 1964 partly due to its "substantially different" nature whenPage 416 compared with those forms of discrimination covered under the Act.²⁴

Specifically, age discrimination, unlike discrimination based upon race, has not historically been animus based.²⁵Page 417

In 1964, age discrimination in employment was not a new thing; stereotypical thinking about older persons, or ageism, had existed in the United States since at least the 1800s.²⁶ The Department of Labor report noted that employers held beliefs and misconceptions about older workers being slower and less productive.²⁷ In the Department's study, employers indicated that older employees suffered from mental or physical deterioration at age forty-five making them unable to perform certain duties or job requirements.²⁸ In a capitalist society such as ours, being perceived as unproductive is the death knell in employment. The results of this study also indicated that not only were older Americans being forced into early retirement and replaced with younger workers,²⁹ but older workers were less likely to be hired than younger workers.³⁰ Many states at the time of the Department of Labor's report had legislation in effect aimed at eliminating age discrimination.³¹ However, several states indicated that a federal law prohibiting age discrimination would enable states to better serve and protect the older employee through education and training.³²

The Department's research concluded that age should not be associated with one's usefulness or ability in the workforce.³³ But, Secretary of Labor Wirtz recommended against extending anti-discrimination laws pertaining to racial or sex discrimination to age discrimination.³⁴ Wirtz recognized that age discrimination was substantially different from other forms of discrimination.³⁵ For instance, Wirtz explicitly stated that "[t]he gist of the matter is thatPage 418 'discrimination' means something very different, so far as employment practices involving age are concerned, from what it means in connection with discrimination involving-for example- race."³⁶ Historically, racial discrimination originated from feelings of dislike or animosity toward members of another group; whereas age discrimination is more frequently based on inaccurate assumptions and beliefs about an individual's abilities.³⁷Page 419

In response to the Department's report, Congress...