Age Discrimination

WHO IS PROTECTED

Recent court rulings have affirmed the idea that retirees are also protected from age discrimination. A recent Supreme Court case called Robinson v. Shell Oil Co. that was primarily about race issues determined that "employee benefits" encompass benefits provided to a company's current employees and to its retirees. As a result, there have been more court cases involving retirees and age discrimination under the ADEA's equal cost or equal benefit provisions. In the case Erie County Retirees Association v. County of Erie, the U.S. Third Circuit court ruled that, while companies could continue the common practice of reducing company-provided medical benefits once a retiree qualified for Medicare medical benefits, the companies had to follow the equal cost, equal benefit standards and could not reduce the benefits more than those standards allowed. Employers are also barred by the ADEA from retaliating against employees who have participated in ADEA litigation against the company in any way, be it filing a claim themselves or testifying at someone else's trial.

One of the tools an employee can use to prove age discrimination is through comments made at the workplace. These comments, under certain circumstances, can come from the employee's supervisor, other management personnel, co-workers, or even the company's chief executive officer. Comments that are directly related to the job and the employee in question and that show bias are always admissible in court, while other comments face different qualifying standards. Comments from the CEO are almost always allowed because they are indicative of the company's official policy. Remarks made by senior managers and other employees, even if they are a year older or more, can be admissible if they indicate that a pattern of bias is present in the corporate culture.

THE CURRENT STATE OF AGE DISCRIMINATION LAW

In 2000, the U.S. Supreme Court made two important rulings that extended the scope of the ADEA. In Reeves v. Sanderson Plumbing Products, Inc., the plumbing company fired an employee who had been with the firm for 40 years, citing one reason for the firing that turned out to be not true. The employee sued, saying that the false reason offered was really just a pretext for the real reason—that the company wanted a younger worker. A jury agreed with the employee, but an appeals court overruled the jury, stating that the employee had to offer additional proof that he was discriminated against—just proving that the company lied about why they fired him was not enough to prove age discrimination. The U.S. Supreme Court disagreed, reinstating the original verdict that the employee was discriminated against. The court ruled that all the employee had to do to prove discrimination was prove that the company's original reason for firing him was false. He did not have to provide "pretext plus," as the rule requiring additional evidence of discrimination was called.

An even more significant case was Kimel v. Florida Board of Regents, in which the court sided with the employers. In the Kimel case, the court ruled by a 5-4 vote that under the 11th Amendment to the Constitution, state governments were shielded from age discrimination suits. In other words, no state employee could sue his employer for age discrimination. This does not totally wipe out an older employee's right to seek recourse, but it does make it tougher for employees. Every state has its own laws making age discrimination illegal, and employees may still take action under those state laws. But each state law is different and, in general, not as tough as federal laws.

In March 2005, the U.S. Supreme Court's decision in the case Smith v. City of Jackson, Mississippi, answered an important question: Must a plaintiff prove discriminatory intent or is proof of disparate impact enough? The ruling in this case, although in favor of the defendant (the employer), was a victory for civil rights plaintiffs. The ruling laid out a rationale by which disparate impact may be used in cases brought under the ADEA, supporting the use of disparate impact as an alternative to employer intent. The requirement that a plaintiff prove that there was discriminatory intent on the part of an employer, when bringing a discrimination case under the ADEA, has long been an obstacle for plaintiffs. The decision in Smith v. City of Jackson, Mississippi reduces the obstacle and clears the way for claims that rest on proof that there was a disparate impact on older employees regardless of the employer's intentions. The practical reality is that it is much easier for a plaintiff to prove disparate impact than discriminatory intent.

The ruling in Smith v. City of Jackson, Mississippi highlights the need for employers to establish strong anti-discrimination policies and to have demonstrated business reasons for employment decisions that may adversely affect older workers.

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