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 motivating or determinative cause of the employer’s decision.

Question 6

How does a plaintiff demonstrate that age discrimination was more likely than not a motivating or determinative cause of the employer’s decision?

Answer 6

Point out such weaknesses, implausibilities, or inconsistencies in the employer’s stated reason.

Question 7

Does the ADEA prohibit discrimination on the basis of seniority?

Answer 7

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

Question 8

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

Answer 8

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 9

Does the ADEA provide a cause of action for retaliation?

Answer 9

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

Question 10

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

Answer 10

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 11

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

Answer 11

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 12

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

Answer 12

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

Question 13

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 13

• 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 14

True/False: the ADEA creates a cause of action for retaliation.

Answer 14

True - see 29 U.S.C. 623(d)

Question 15

What damages can be recovered under the ADEA?

Answer 15

• 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 16

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

Answer 16

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

Question 17

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

Answer 17

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

Question 18

What is a “willful” violation of the ADEA?

Answer 18

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

Question 19

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

Answer 19

False - does not include front pay.

Question 20

What types of damages cannot be recovered under the ADEA?

Answer 20

• Punitive damages
• Emotional distress
• Pain and suffering

Question 21

What are some affirmative defenses to an ADEA claim?

Answer 21

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

Question 22

What is the bona fide occupational qualification defense?

Answer 22

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 23

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

Answer 23

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 24

What is the after-acquired evidence defense?

Answer 24

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 resinstatement 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 25

What’s the ADEA’s purpose?

Answer 25

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 26

What does the ADEA prohibit an employer from doing?

Answer 26

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 27

What does the ADEA prohibit an employment agency from doing?

Answer 27

It shall be unlawful for an employment agency to fail or re-fuse to refer for employment, or otherwise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.

Question 28

What does the ADEA prohibit a labor organization from doing?

Answer 28

It shall be unlawful for a labor organization—
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;
(2) to limit, segregate, or classify its membership, or to classify or fail or refuse to refer for employment any individual, in any way which would deprive or tend to deprive any individual of employment opportunities, or would limit such employment opportunities or otherwise adversely affect his status as an employee or as an applicant for employment, because of such individual’s age;
(3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section.

Question 29

Who is covered by the ADEA?

Answer 29

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

Question 30

Does the ADEA only cover employees?

Answer 30

No. The ADEA covers not only employees but also applicants and discharged ex-employees because the statute prohib-its discrimination against individuals regarding any terms or conditions of employment.

Question 31

Does the ADEA apply to federal employees?

Answer 31

The ADEA applies to most federal employees, and the Congressional Accountability Act of 1995 extended the rights and protections of the ADEA to congressional em-ployees. 2 U.S.C. ¶ 1301 et seq.

Question 32

Which employers are covered by the ADEA?

Answer 32

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).

Question 33

Are public and private employers covered by the ADEA?

Answer 33

Yes. Both private and public employers are generally covered by the ADEA.

Question 34

Are foreign companies subject to the ADEA?

Answer 34

Companies that are incorporated in a foreign country but that are controlled by a U.S. employer are subject to the ADEA. 29 U.S.C. § 623(f)(1) and (h).