ADEA

Question 1

What are the elements of a prima facie case of age discrimination under the ADEA?

Answer 1

1. the plaintiff is at least 40 years old;
2. the plaintiff is qualified for the position;
3. the plaintiff suffered an adverse employment action; and
4. the adverse employment action occurred under circumstances that give rise to an inference of age discrimination.

Question 2

To prevail on an ADEA claim, the plaintiff must prove that ? was the ? cause of the adverse employment action?

Answer 2

age discrimination; but for. Gross, 129 S. Ct. 2343 (2009)

Question 3

What is the definition of a “private employer” under the ADEA?

Answer 3

A person who engaged in an industry affecting interstate commerce who employs 20 or more individuals for each working day in 20 or more calendar weeks during the current or preceding calendar year.

Question 4

Does the ADEA provide a right to a jury trial?

Answer 4

Yes. 29 U.S.C. 626(c)(2)

Question 5

What does a plaintiff have to show to establish pretext in an age discrimination claim under the ADEA?

Answer 5

Sufficient direct or circumstantial evidence to allow a factfinder to reasonably believe (1) the employer’s stated reason is false, or (2) age discrimination was more likely than not a determinative cause of the employer’s decision.

Question 6

Does the ADEA prohibit discrimination on the basis of seniority?

Answer 6

No. Seniority is often related to age, but it’s not the same thing. Hazen, 507 U.S. 604 (1993)

Question 7

Does the ADEA prohibit an employer from favoring an older worker over a younger worker?

Answer 7

No. Congress only intended to protect older workers through the ADEA. It did not prohibit favoring the old over the young. General Dynamics, 540 U.S. 581 (2004)

Question 8

Does the ADEA provide a cause of action for retaliation?

Answer 8

Yes. 29 U.S.C. 623(d)

Question 9

What are the two circumstances in which a plaintiff can bring a cause of action for retaliation under the ADEA?

Answer 9

1. he opposed a practice that is unlawful under the ADEA and was discriminated against in response; or
2. he made a charge, testified, or participated in an investigation, proceeding, or litigation under the ADEA and was discriminated against in response.

Question 10

What are the elements of a prima facie case of retaliation under the ADEA?

Answer 10

1. the plaintiff engaged in protected activity;
2. he/she suffered an adverse employment action;
3. there is a causal link between the protected activity and the adverse employment action.

Question 11

Are acts of age discrimination against other employees (i.e., not the plaintiff) admissible in an age discrimination lawsuit?

Answer 11

It depends. No hard and fast rule. Must undergo Rule 403 balancing test.

Question 12

What are some examples of conduct by an employer that could support a plaintiff’s claim that age discrimination was more likely than not a motivating or determinative factor in the employer’s decision?

Answer 12

• The employer previously discriminated against the plaintiff.
• The employer discriminated against other within the employee’s protected class (i.e., employees age 40 and older).
• The employer treated similarly-situated, younger employees more favorably.

Question 13

What damages can be recovered under the ADEA?

Answer 13

• Back pay (mandatory after a finding of discrimination).
• Front pay (permitted to be awarded)
• Liquidated damages (i.e., double damages) for willful violation of the ADEA.

Question 14

True/False: collateral benefits such as unemployment compensation, pension benefits, and social security benefits are deducted from an ADEA back pay award.

Answer 14

False - Berndt, 789 F.2d 253 (3d Cir. 1986)

Question 15

True/False: interim earnings are deducted from back pay awards under the ADEA.

Answer 15

True - Berndt, 789 F.2d 253 (3d Cir. 1986)

Question 16

What is a “willful” violation of the ADEA?

Answer 16

If the defendant knew or showed reckless disregard for whether the challenged conduct was prohibited by law.

Question 17

True/False: the amount of damages to be doubled under the ADEA’s liquidated damages provision includes front pay.

Answer 17

False - does not include front pay.

Question 18

What types of damages cannot be recovered under the ADEA?

Answer 18

• Punitive damages
• Emotional distress
• Pain and suffering

Question 19

What are some affirmative defenses to an ADEA claim?

Answer 19

1. Bona fide occupational qualification (BFOQ)
2. Bona fide seniority system
3. Waiver
4. After-acquired evidence

Question 20

What is the bona fide occupational qualification defense?

Answer 20

It is not unlawful for an employer to take an action that’s otherwise prohibited by the ADEA if age is a bona fide occupational qualification that’s reasonably necessary to the normal operation of the particular business. 29 U.S.C. 629(f)(1). It’s an extremely narrow exception.

Question 21

What is required to establish the affirmative defense of a good faith seniority system?

Answer 21

1. The seniority system used the length of service of employee - not the age of the employees - as the primary basis for giving available job opportunities to workers; and
2. The defendant’s challenged employment action was consistent with its seniority system.

Question 22

What is the after-acquired evidence defense?

Answer 22

If an employer discharges an employee for a discriminatory reason, later-discovered evidence that the employer could have used to discharge the employee for a legitimate reason does not immunize the employer from liability. However, the employer does not have to offer reinstatement or front pay and only has to provide back pay “from the date of the unlawful discharge to the date the new information was discovered.” McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 362 (1995); Mardell v. Harleysville Life Ins. Co., 65 F.3d 1072, 1073 (3d Cir. 1995).

Question 23

What’s the ADEA’s purpose?

Answer 23

The ADEA is intended to “promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems aris-ing from the impact of age on employment.” 29 U.S.C. § 621(b); Hildebrand v. Allegheny Cnty., 757 F.3d 99, 109 (3d Cir. 2014).

Question 24

What does the ADEA prohibit an employer from doing?

Answer 24

The Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., makes it unlawful for an employer:

(1) 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;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

29 U.S.C. § 623(a).

Question 25

Which employees are covered by the ADEA?

Answer 25

The ADEA covers employees who are 40 years of age and older. 29 U.S.C. § 631(a).

Question 26

Which employers are covered by the ADEA?

Answer 26

The ADEA applies to employers who have “twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b).