The Age Discrimination in Employment Act

Question 1

What does the ADEA outlaw?

Answer 1

The discharging of any individual or other discrimination against any individual because of the individual’s age.

Question 2

Who can be sued under the ADEA?

Answer 2

Private employers (and their agents) employing 20 or more employees who work each workday in each of 20 weeks during the current or preceding calendar year.

N.B.: The Eleventh Amendment precludes plaintiffs from suing states for monetary damages.

Question 3

Who is protected by the ADEA?

Answer 3

Current employees, former employees, and applicants who are at least 40 years old.

N.B.: Reverse discrimination is allowed.

Question 4

What is the prima facie case under the ADEA?

Answer 4

The plaintiff must show:

1. They are 40 or older;
2. they suffered an adverse employment action;
3. they were qualified for their position; AND
4. they were replaced by another employee who was “sufficiently younger to support an inference of discriminatory animus.”

Question 5

What exemptions exist under the ADEA?

Answer 5

1. Bona fide executives and high policymaking employees may be required to retire at 65 IF
   
   1. the employer entitles the employee to annual retirement benefits of at least $44,000 AND
   2. the employee was in the position for at least two years prior to the retirement date.
2. Safety officers (cops, firefighters) are subject to mandatory retirement in accordance with state and local laws and age restrictions may be imposed on hiring.
3. Certain elected anda ppointed officials may also be subject to mandatory retirement (like appointed state judges).

Question 6

What defenses may an employer raise to an ADEA claim?

Answer 6

1. Bona fide occupational qualification
2. Reasonable factor other than age
3. Good cause

Question 7

What is a bona fide occupational qualification?

Answer 7

An affirmative defense available to the employer when the employer can show that an age restriction or differential treatment of older employees is reasonably necessary to the normal operation of the particular business.

Question 8

What must an employer prove for BFOQ?

Answer 8

The employer must demonstrate that

1. the age restriction or differential treatmnet of older employees is reasonably necessary to its primary mission AND
2. dealing with such employees on an individualized, rather than group, basis would be impractical OR
3. a factual basis exists for believing substantially all older persons would be unable to perform safely and efficiently.

N.B.: Customer preference is generally not a factor in meeting the requirements for BFOQ, unless it is based on the company’s inability to perform the primary service or function it offers.

Question 9

What is the goal is public safety?

Answer 9

Then the employer must prove that

1. the challenged practice does not effectuate that goal AND
2. there is no acceptable alternative that would better advance the goal or equally advance it with a less discriminatory impact.

Question 10

What is the standard for proving BFOQ?

Answer 10

Very strict! Usually requires convincing empirical evidence linking age to a decline in job competency. For jobs in which age is a BFOQ, the employer may require

1. an applicant to be a certain age or younger AND
2. that employees over a certain age mandatorily retire.

Question 11

Will employees have a claim if a policy disparately impacts people based on age?

Answer 11

No, as long as the policy is based on a reasonable factor other than age. An employer may engage in a practice that has a disparate impact on older applicants or employees when such differentiation is based on a reasonable factor other than age.

Question 12

Can an older employee be discharged or disciplined for good cause?

Answer 12

Yes.

Question 13

What does the Older Workers Benefit Protection Act do?

Answer 13

It authorizes knowing and voluntary waivers of ADEA rights.

Question 14

What is required for a voluntary waiver of ADEA rights to be valid?

Answer 14

The employer bears the burden of proving that the waiver

1. was written in a manner calculated to be understood;
2. made specific reference to ADEA claims;
3. did not waive rights arising after its execution;
4. was supported by consideration;
5. advised the individual in writing to consult an attorney; AND
6. provided a 21-day period for the individual to consider any waiver of ADEA rights, and a 7-day period during which the waiver may be revoked.