Age Discrimination Primer

With age discrimination claims on the rise, employers should be mindful of the basics.

In the first three quarters of 2002, the EEOC reported nearly a twenty percent increase in age discrimination claims over the same period in 2001, and similar state law claims also appear to be on the rise. A combination of three factors seems to have spurred the increase: (1) both the nation's population and the workforce are aging (according to the U.S. Census Bureau, 12.4% of the national population is over age sixty-five, and by 2010 one-third of the workforce is expected to be at least age fifty-five); (2) in the current economy, with significant downsizing and layoffs, more and more employees are facing job losses and are considering legal claims; and (3) in general, age discrimination claimants are one of the most "sympathetic" of the protected classes, making more plaintiffs' lawyers willing to pursue their claims.

Therefore, employers should bear in mind the possibility of age discrimination claims as they make employment-related decisions. This article will serve as a reminder of the basics of the law.

What employers and what employees are covered? Employers with at least twenty employees are subject to the federal Age Discrimination in Employment Act (ADEA). Moreover, if an employer had twenty employees for each working day in at least twenty calendar weeks, either during the present calendar year or the previous calendar year, the employer is covered by the ADEA. State and local government agencies are covered by the ADEA.

In addition, Tennessee employers with at least eight employees are subject to the Tennessee Human Rights Act (THRA), which also prohibits age discrimination in employment.

All employees age forty or above are in the "protected class" under both the ADEA and the THRA. There is generally no "cap" on the age of persons who are in the protected class.

What employment practices are prohibited? Generally speaking, age discrimination statutes apply in the context of hiring, firing, promotion, layoff, discipline, raises, pay, fringe benefits, and similar decisions. Under most circumstances, any such employment decision cannot be based upon the employee's age.

The critical question in an age discrimination case, as in most other types of discrimination cases, is how the employee might prove that an employment decision was based upon age? If the employee can establish that he was within the protected age group, that he was qualified for the position, that he suffered some adverse employment decision, and that there are circumstances which would support an inference that the decision was based at least in part on age, then the law requires the employer to come forward with a legitimate reason for the decision which is not age-related. If the employer's reason is false, or if it is a mere cover-up for the real reason (that being age discrimination), then the employee may argue to the jury that unlawful discrimination has occurred.

What kinds of evidence would support an inference of age discrimination? In a firing case, for example, the replacement of an older employee with a younger employee may suffice. Comments or even jokes about the employee's age may become important evidence, especially if they were made at or near the time of the employment decision. In hiring cases, anything which shows a preference for younger employees may serve as evidence of discrimination, such as advertisement for "young" workers, or possibly even asking for an applicant's birth date.

Most Courts, including our own Sixth Circuit, recognize "hostile environment" claims in the age discrimination context, as well. Therefore, creating an abusive or offensive environment which unreasonably interferes with the employees's ability to perform his job, such as constant age jokes and innuendos, put-downs, etc., could give rise to a claim.

Reductions in force and layoffs. When an employer must make a reduction in force (RIF) or a layoff of a group of employees, it is common for older employees to claim that they were targeted. The more the employer's decision is based upon objective criteria, rather than subjective factors, the better the employer's chances in defending an age discrimination claim in this context. Documentation of the reasons for the decision is critical, although the larger the number of affected employees, the more difficult this becomes.

Exceptions and defenses. An employer can win an age discrimination case by proving that the employment decision was based upon reasonable factors other than age. Therefore, employers are not handcuffed when it comes to disciplining or terminating older workers for legitimate reasons, such as poor performance or misconduct. Under some limited circumstances, an employer may be able to establish that age is a bona fide occupational qualification (BFOQ), such as a rule regarding the hiring of airline pilots or employees in some strenuous occupations. However, this is a very narrow defense which should not be relied upon absent special circumstances. Employers may also treat older workers differently under a bona fide employee benefit plan, or under a bona fide seniority system. Finally, under some circumstances a bona fide executive or high policymaker may be excepted from coverage under the statutes.

Liabilities. Similar to other discrimination cases under Title VII, a successful age discrimination plaintiff under the ADEA may recover back pay (i.e., lost wages from the date of the discriminatory conduct through trial), front pay (i.e., anticipated lost earnings for the future), attorney's fees and litigation costs. Unlike Title VII, compensatory damages (e.g/, for emotional distress, pain and suffering) are not available under the ADEA, nor are punitive damages. However, because procedures and remedies under the ADEA were originally written to parallel those under the Fair Labor Standards Act, under the ADEA a successful plaintiff may recover "liquidated damages" equal to a doubling of his damage award, if he can prove that the employer's violation was "willful," meaning that the employer knew its conduct was unlawful or showed reckless disregard for whether its conduct was unlawful. A specific intent to violate the ADEA is not required in order to recover liquidated damages. Finally, jury trials are available under the ADEA.

Under the THRA (Tennessee state law prohibiting age discrimination), a successful plaintiff may recover back pay, front pay, attorney's fees and litigation costs. Unlike the ADEA, the plaintiff may also recover damages for humiliation and embarrassment. However, under the THRA there is no provision for the recovery of either punitive damages or liquidated (doubled) damages. As a result, most claims are filed under the ADEA.

Practical advice. First, employers should be familiar with age discrimination laws and recognize when a situation may implicate those laws. It is wise to run employment decisions affecting older employees by your attorney. Just as you would not tolerate jokes and the like at the expense of an employee on account of her race or sex, do not tolerate the same things on account of age. Make your policies age-neutral. Do not take an employee's or applicant's age into account in making hiring, firing, pay, and similar decisions. Just as importantly, be mindful of things which might give the appearance of an age-based decision, even when there are other legitimate factors.

View all articles by Bob E. Lype