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Spaeth v. Georgetown University, No. 11-1376 (U.S. Dist. Court for DC) March 13, 2012

Plaintiff born in 1950 seeking Law School Professor position filed a claim against a number of schools under the ADEA when he was not offered employment. The court concluded the complaint contains sufficient factual allegations, if accepted as true, to state a claim for relief that is plausible on its face. The court dismissed plaintiff’s claims for compensatory and exemplary damages, as these are not available under the ADEA. The plantiff also brought a claim under the DCHRA and he seeks an injunction ordering Georgetown to hire him.

Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008)
Knolls, as part of an involuntary reduction in force, told its managers to score their employees on the basis of their "performance," "flexibility," and "critical skills." The scores were added up with points given for years of service, and then the total determined who would be laid off. Thirty of the thirty-one employees terminated for having the lowest scores were 40 years of age or older. The employees claim that the reduction in force had a disparate impact on the older employees, violating the ADEA. The Supreme Court held that an employer bears both the burden of production and the burden of persuasion when proving that it used a "reasonable factor other than age" for its employment policy or action which has a disparate impact on an employee over the age of 40.

The *reasonable factor other than age*(which appeared alongside the BFOQ defense in the statute) was found to be an affirmative defense, in the same manner as BFOQ, and thus the defendant bears the burden of proof of showing reasonableness.

Where the factor is clearly reasonable, the additional burden on the employer is minimal; where it is not, more evidence is required to go from production to persuasion. However, the Court did reason that an ADEA plaintiff cannot just allege that a general policy has a disparate impact on older workers, but rather, they must identify a specific employment practice that has resulted in a disparity. See Supreme Court Rules Employers Bear Burden of Proving Reasonableness of Employment Policies and Actions, Jackson Lewis newsletter, June 20, 2008.

Gomez-Perez v. Potter, Postmaster General, No. 06-1321 (U.S. Supreme Court May 27, 2008)
The Court held that under the federal-sector provision of the Age Discrimination in Employment Act (ADEA), a federal employee may bring a retaliation claim against a federal employer even though the statutory language does not specifically authorize such a claim. The Court read the general statutory phrase of the federal-sector provision "discrimination based on age" to include retaliation based on the filing of an age discrimination complaint, despite the fact that the ADEA's private-sector provision explicitly lists retaliation under prohibited employer practices and the federal sector text does not. See § 623(d) and 633(a). The Court argued that retaliation is another form of intentional discrimination because not only is it an intentional act but the employee is subject to differential treatment by their employer. See Jackson v. Birmingham Bd. Of Ed., 544 U.S. 167 (2005). See the SCOUT WIKI analysis of this opinion.

Federal Express Corp. v. Holowecki, (No. 06-1322) U.S. Supreme Court, Feb. 27, 2008

The question in this case was whether a completed EEOC questionnaire form along with a six page affidavit equaled a charge for EEOC purposes under the ADEA. In this case, even though the EEOC did not notify FedEx or conduct an investigation or conciliation, the Court ruled that any document filed with the EEOC that can reasonably be construed as a request for action to protect an employee's rights or otherwise settle a dispute constitutes a discrimination charge under the ADEA. See the Winston and Strawn Labor and Employment Briefing titled: Supreme Court Adopts EEOC Standard Regarding Whether a Filing Constitutes a Charge. The EEOC was urged by the Court to revise its forms and procedures.

AARP v. EEOC, No. 05-4594 (3rd. Cir. June 4, 2007)

This case affirms the District Court order of Sept. 27, 2005 granting the EEOC's motion for relief from judgment, and vacates the District Court's prior order of March 30, 2005, lifting the injunction of the implementation of the proposed regulation that exempts from the prohibitions of the ADEA employer coordination of retiree health benefits with Medicare or state-sponsored retiree health programs.

AARP v. EEOC, No 05-CV-509 (E.D. PA, Sept. 27, 2005)

This decision vacates the court's decision and order in the case of the same name below. The change in position was due to the June 27, 2005 decision by the U.S. Supreme Court in National Cable and Telecommunications Association v. Brand X Internet Services. The Brand X case limited the role of a reviewing court on agency rules, holding that a court's interpretation of a statute only bars an agency from interpreting that statute differently from the court if the court has determined the only permissable meaning of the statute.

AARP v. EEOC, No. 05-509 (E.D. PA, March 30, 2005) 2005 WL 723991

In this case, a federal district in the Eastern District of Pennsylvania granted a motion for summary judgment for the AARP, holding that the EEOC proposed regulation published at 68 Fed. Reg. 41542 is contrary to law and violates the clear intent of Congress in passing and amending the ADEA, as articulated in Erie County Retiree Association v. County of Erie, 220 F. 3d 193 (3rd Cir. 2000). In that case, the Third Circuit held that it was clear from the face of the ADEA that Congress intended for the ADEA's prohibitions against age discrimination to apply to the practice of reducing retiree health benefits when retirees become eligible for Medicare. See the EEOC Press Release vowing to ask the Department of Justice to appeal the order.

Smith v. City of Jackson (no. 03-1160) U.S. Supreme Court, decided March 30, 2005

The city of Jackson, Mississippi was sued by its police and public safety officers under the ADEA, contending that the salary increases received were less generous to officers over age 40, and thus violated the ADEA. The Supreme Court held that while the "disparate impact" theory did apply to the ADEA, in this case, the decision by the City to "grant a larger raise to the lower echelon employees for the purpose of bringing salaries in line with that of surrounding police forces was a decision based on a 'reasonable factor other than age' that responded to the City's legitimate goal of retaining police officers."

The Petitioners sued under both disparate treatment and disparate impact theories. The District Court granted summary judgment for the City on both claims, but the 5th Circuit Court of Appeals held that the summary judgment ruling by the District Court on the disparate impact treatment was premature. The Court of Appeals concluded that disparate impact claims are not available under the ADEA. The U.S. Supreme Court disagreed on this point and held that the ADEA does authorize recovery on the disparate impact theory, but that petitioners had failed to set forth a valid disparate impact claim. The Court pointed out that the ADEA, while similar to Title VII, contains language in section 4(f)(1) that significantly narrows its coverage permitting any otherwise prohibited action where the differentiation is based on reasonable factors other than age. The Court stated the following:

Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is "responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." 490 U.S., at 656 (emphasis added) (quoting Watson, 487 U.S., at 994). Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could "result in employers being potentially liable for 'the myriad of innocent causes that may lead to statistical imbalances … .' " 490 U.S., at 657. In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City's plan was based on reasonable factors other than age.

In concluding the case, the Court distinguished between the business necessity test, and the reasonableness inquiry, which is more generous to the employer, as follows:

While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreasonable. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.

General Dynamics Land Systems Inc. v. Cline (No. 02-1080) U.S. Supreme Court, decided Feb. 24, 2004

A collective-bargaining agreement between petitioner company and a union eliminated the company's obligation to provide health benefits to subsequently retired employees, except as to then-current workers at least 50 years old. Respondent employees (collectively, Cline)-who were then at least 40 and thus protected by the Age Discrimination in Employment Act of 1967 (ADEA), but under 50 and so without promise of the benefits-claimed before the Equal Employment Opportunity Commission (EEOC) that the agreement violated the ADEA because it "discriminate[d against them] … because of [their] age." The Court held the ADEA's text, structure, purpose, history, and relationship to other federal statutes show that the statute does not mean to stop an employer from favoring an older employee over a younger one.

EEOC v. Board of Regents of the University of Wisconsin System, Case No. 01-2998, 288 F.3d 296, (7th Cir. 2002)

The EEOC brought an enforcement action against the University of Wisconsin System, alleging violation of the ADEA when the University of Wisconsin Press terminated the four oldest employees working for the press. The jury found U.W. guilty of an intentional violation of the ADEA. The 7th Circuit Court of Appeals upheld the jury finding of liability and damages.

The U.W. Press terminated the four oldest employees, and gave the job responsibilities to younger employees, or to younger "limited term employees." The U.W. argued in defense that not all of the fired parties were replaced by someone at least 10 years younger. The Court noted that the line drawn is "not so bright as to exclude cases where the gap is smaller but evidence reveals the employer's decision to be motivated by the plaintiff's age."

Evidence in the record (the justification for the decision to terminate) included the statement that one of the fired employees "would have to take courses to get up to speed on Webpage programming or the electronic transfer of data and images." The justification also referred to one of the employees as having skills suited to the pre-electronic era. There was also evidence brought out at trial that the U.W. Press was seeking a new vision. The court stated a reasonable jury could conclude these were code words for age bias.

The jury also found the discrimination was willful. The following paragraph is a useful review of the mistakes made that led to the 7th Circuit's affirming the jury's finding of willful discrimination.

The evidence was sufficient to allow the jury to infer that Bethea knowingly sought to circumvent the ADEA. We have already referred to his desire for agility and his attempt to jump legal hurdles. He conceded that the hurdles included the ADEA. There is also evidence that the UW seemed recklessly to disregard whether its conduct was prohibited. Bethea, for instance, knew the ADEA was a hurdle, but neither he nor Salemson had been given any employment law training and neither man seemed to know the age at which the protections of the Act arose. In addition, even though the charging parties were the oldest people at the Press, Lamboley, the campus layoff expert, did not look at the terminations to see if age discrimination might have been involved. Neither did Associate Dean Mareda Weiss, who also did not know that the floor age of protection under the ADEA was 40. Nor did Dean Virginia Hinshaw, who also reviewed the proposed terminations. We have previously said that "leaving managers with hiring authority in ignorance of the basic features of the discrimination laws is an 'extraordinary mistake' " from which a jury can infer reckless indifference.

The ruling in this case has several practical pointers for employers seeking to avoid violations of the ADEA. Training in employment discrimination law for all managers can no longer be seen as a luxury. In addition, training about the ADEA should include the point that lack of web skills is not a valid reason for terminating older employees. All employees, regardless of age, should be offered the chance to learn new job skills, including the creation of web pages.

Reeves v. Sanderson Plumbing Products Inc., 530 U.S. 133(2000)

The Supreme Court clarified the burden of proof in discrimination cases in a decision issued June 12, 2000. In a case brought under the ADEA, Reeves v. Sanderson Plumbing Products Inc., No., 99-536, the Court addressed the question of whether a plaintiff's prima facie case of discrimination, combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of intentional discrimination. In the case, petitioner Reeves, aged 57, claimed he had been terminated by his employer due to his age. The employer contended Reeves was fired due to his failure to maintain accurate attendance records. Reeves introduced evidence that showed he had in fact maintained accurate records.The Supreme Court held that the evidence eliminating the employer's proffered reason, combined with the prima facie evidence of differential treatment on the basis of age, was adequate for the jury to find intentional discrimination. The Court of Appeals was found to have erred in proceeding from the premise that the plaintiff must always introduce additional independent evidence of discrimination. Although the case was decided under the ADEA, this less strict burden for the plaintiff would also seem to be applicable to cases of intentional discrimination brought under Title VII, as in deciding this case, the Supreme Court assumed the Title VII McDonnell Douglas burden shifting framework was applicable.

O'Connor v. Consolidated Coin Caterers, 517 U.S. 308 (1996)

In the O'Connor case, the Court held that in a non-RIF setting, the plaintiff need not prove he or she was replaced by someone outside of the protected class to make a prima facie case of age discrimination. See EEOC enforcement guidance on O'Connor, EEOC Notice Number 915.002 (Sept. 18, 1996), online at http://www.eeoc.gov/policy/docs/oconnor.html.

Crawford v. Medina General Hospital, 96 F.3d 830 (6th Cir. 1996). In Crawford, the court held that a hostile environment claim could be brought under the ADEA.

Marks v. Loral Corp., 57 Cal. App.4th 30 (1997). In this case, the court held than an employer is entitled to choose employees with lower salaries, even though this may result in choosing younger employees.

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