Contemplating the Future of EEO Law: Will the ADEA Continue To Protect Age Equality? Father Time Will Tell…
By Jessica Yarbrough · January 5, 2016 · 2016 Ark. L. Notes
In categories: Administrative Law, Arkansas Law Notes, Civil Litigation, Constitutional Law, Corporate and In-House Counsel, Elder Law, Government Practice, Snapshot
I was honored to take part in the fall symposium, “50 Years of Advancing Equal Opportunity,” sponsored by the Arkansas Law Notes. Our country has made great strides in ensuring equality in the workplace; however, with changes in the demographics of the workforce, will the current Equal Employment Opportunity Law be sufficient to continue to provide protection? Only Father Time will tell. While the Age Discrimination in Employment Act (the Act) is widespread, this paper briefly highlights its history and will offer points of contemplation of the future effectiveness of the Act for plaintiffs in light of a heightened burden of proof and an aging work population.
Age Discrimination in Employment Act (ADEA)
The text of the Age Discrimination in Employment Act of 1967 appears in 29 U.S.C. §§621 – 634 and the amendments are provided therein. Generally, the Act bars age discrimination against workers over age forty. The original Act prohibited age discrimination for those aged 40-65. The age limit was raised to 70 and then subsequently eliminated in 1986. The Act was amended again in 1990 by the Older Workers Benefit Protection Act for the purpose of safeguarding older workers from an involuntary or uninformed waiver of their protection under the ADEA. Most recently, the Supreme Court ruled in Gross v. FBL Financial Services, Inc., establishing a higher standard for proving causation than the standard that plaintiffs have in the majority of federal civil rights statutes.
The Burden of Proof
In 2009, the Supreme Court held in Gross v. FBL Financial Services that a plaintiff with an ADEA disparate treatment claim must prove, by a preponderance of the evidence, that age was the “but-for” cause of the adverse employment action. The burden of proof does not shift to the employer to show that it would have taken the action regardless of age. Such stands true even when a plaintiff has provided some evidence that age was one motivating factor in an employer’s decision. The Court opined that the “motivating factor” framework provided in Price Waterhouse v. Hopkins would be inapplicable to ADEA cases. In Price Waterhouse, six Justices agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or “substantial” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. This “mixed-motives” instruction, shifting the burden of proof to the employer, is never appropriate in ADEA cases.
In July 2013, the Protecting Older Workers Against Discrimination Act (POWADA) was introduced in the United States House of Representatives as H.R. 2852. If adopted, POWADA would amend the Age Discrimination in Employment Act of 1967 to specify that an unlawful employment practice is established when the complaining party demonstrates that age or participation in investigations, proceedings, or litigation under such Act was a motivating factor for any practice, even though other factors also motivated the practice (thus allowing what are commonly known as “mixed motive” claims). It would also provide that a complaining party shall not be required to demonstrate that age or retaliation was the sole cause of a practice (rejecting the Supreme Court decision in Gross v. FBL Financial Services, Inc.). To date, this bill has only been referred to the Subcommittee on Workforce Relations.
Point of Contemplation: Will the “but for” burden of proof stifle the success of ADEA plaintiffs and subsequently discourage other potential plaintiffs from pursing claims under the ADEA?
The Effectiveness of the ADEA vs. An Aging Population
Population aging would suggest that the public policy must be more concerned with the employment of older individuals. From 2008 to 2018, total employment is projected to increase by 15.3 million, or 10.1 percent. Women ages 45 to 54, 55 to 64, and 65 and older are projected to be the age groups with the greatest increase in participation rates in year 2018. Employment of such individuals evokes lower dependency ratios, more tax revenues, decreased public expenditures on health costs and retirement benefits. In light of an aging population, it is important to view the ADEA’s potential to discourage discriminatory behavior; however, such behavior is now more difficult to establish in fact in that plaintiffs must meet the “but for” standard. This application of the ADEA must be weighed in light of an aging workforce. More individuals are working longer and retiring later. Additionally, retired individuals often seek partial retirement, short-term employment, or bridge jobs to assist with living expenses.
It is common for ADEA charges to stem from issues revolving around termination and/or layoff claims. In discharge cases, those previously employed by an organization constitute a protected class. A plaintiff would have an increased possibility of pointing to specific and articulable facts that lead to discoverable evidence of discrimination based upon a class of protected people that were terminated. Those protected under the ADEA that believed they have suffered discrimination as a result of being refused employment in hiring actions have an uphill climb in that a plaintiff must be able to establish that the potential employer did not hire him “but for” his age, and must be able to establish the qualifications of the other applicants. In ADEA failure to hire discrimination suits, it is complainant’s burden to establish his prima facie claim by presenting evidence that (1) he is member of a protected class, (2) he applied and was qualified for position in question, (3) that despite his qualifications, he was rejected, and (4) that, after rejection, the position remained open and employer continued to seek applicants from persons of complainant’s qualifications. Establishing a prima facie case alone may become increasingly difficult for the aging workforce population that seeks part-time or bridge employment.
Damages awardable in cases of unlawful age discrimination have been held to include the amounts of wages, salaries, and other compensation which the wronged party would have received had he not been refused employment or not been discharged, minus amounts received in other employment. However, equitable considerations may justify a court in awarding a lesser amount. A plaintiff has been held entitled to a jury trial on the basis of lost wages and benefits, but not on the issue of liquidated damages.
Points of Contemplation: As to the future of ADEA claims, could more individuals that are seeking shorter-term jobs, partial retirement, or bridge jobs after age 65 suffer from refusal-to-hire scenarios? If so, are refusal-to-hire actions even more difficult to prove by identifying a class of protected applicants?
The ADEA has undergone a variety of amendments and the Supreme Court has also provided its interpretation as to how to apply the ADEA. As a result of changes in the demographics of the workplace, along with the willingness of plaintiffs to pursue ADEA claims in light of the “but-for” standard, only time will tell if the ADEA will continue to effectively protect against age discrimination.
 29 U.S.C. §§623 et seq.
 29 U.S.C. §631, §12 (1982).
 29 U.S.C. §626(f)(1).
 See, Gross v. FBL Financial Services, Inc.,557 U.S. 167 (2009). The Supreme Court established a higher standard for plaintiffs alleging age discrimination under the ADEA than it did for protected classes under Title VII. This paper provides an overview of the amendments of the Act and does not mentioned each amendment.
 Id. at 176.
 Id. at 180.
 490 U.S. 228 (1989). In Price Waterhouse, the Court addressed the proper allocation for the burden of proof in cases arising under Title VII of the Civil Rights Act of 1964, as amended. 42 U.S.C. §2000e et seq.
 Gross, 557 U.S. at 180.
 Id. at 171, citing Price Waterhouse, 490 U.S. 228, 258 (1989).
 Id., at 174. Additionally, circuit courts have found that plaintiffs have avoided summary judgment by utilizing the burden-shifting method of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McDonnell Douglas offers the traditional standard in the absence of direct evidence of discrimination, which allows the plaintiff to shift the burden of proof.
 Protecting Older Workers Against Discrimination Act of 2013, H.R. 2852, 113th Cong. (2013).
 Howard N. Fullerton, Jr., Labor Force Participation: 75 Years of Change, 1950 – 98 and 1998 – 2025, Monthly Lab. Rev. 23 (2007).
 U.S. Census Bureau, Statistical Abstract of the United States: 2011, http://www.census.gov/compendia/statab/2011/tables/11s0585.pdf., at 377.
 David Neumark, The Age Discrimination in Employment Act and the Challenge of Population Aging, National bureau of economic research (2008).
 Equal Employment Office of Commission, http://www.eeoc.gov/.
Although a pattern of discharging older employees and hiring only younger persons may evidence age discrimination, courts are cautious in finding such a pattern. See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 799, 93 FEP Cases 24 (3d Cir. 2003) (evidence that employer hired nine younger employees since dismissing plaintiff, without more, too speculative to survive summary judgment), cert. denied, 541 U.S. 1064, 93 FEP Cases 1344 (2004).
 Yeshick v. Mineta, 675 F.3d 622, 632 (6th Cir. 2012) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177) (2009)). The Court stated that “all ADEA plaintiffs must carry the burden of persuasion and demonstrate that age was the ‘but for’ cause of the adverse employment action.”
 Age Discrimination in Employment Act of 1967, § 4(a)(1), 29 U.S.C.A. § 623(a)(1). Rivera Rodriguez v. Sears Roebuck De Puerto Rico, Inc., 367 F. Supp. 2d 216 (D.P.R. 2005).
 24 A.L.R. Fed. 808 (Originally published in 1975).