The Age Discrimination in Employment Act (ADEA): A Legal Overview

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The Age Discrimination in Employment Act

(ADEA): A Legal Overview

(name redacted)

Legislative Attorney

June 23, 2010

Congressional Research Service

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www.crs.gov

RL34652

CRS Report for Congress

Prepared for Members and Committees of Congress

The Age Discrimination in Employment Act (ADEA): A Legal Overview

Summary

This report provides an overview of the Age Discrimination in Employment Act (ADEA) and

discusses current legal and legislative developments. The ADEA, which prohibits employment

discrimination against persons over the age of 40, was enacted “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 arising from

the impact of age on employment.”

The ADEA, which applies to employers, labor organizations, and employment agencies, makes it

unlawful for an employer “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.” The statute not only applies to

hiring, discharge, and promotion, but also prohibits discrimination in employee benefit plans such

as health coverage and pensions. The Equal Employment Opportunity Commission (EEOC) is

responsible for enforcing the provisions of the ADEA.

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.” A labor

organization is covered by the ADEA if it “exists for the purpose ... of dealing with employers

concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of

employment.” An employment agency and its agents are subject to the ADEA if the agency

“regularly undertakes with or without compensation” the procurement of employees for an

employer, other than an agency of the United States. The ADEA also covers congressional and

most federal employees.

Congressional Research Service

The Age Discrimination in Employment Act (ADEA): A Legal Overview

Contents

I. Introduction .............................................................................................................................1

II. Requirements Under the ADEA ..............................................................................................1

Coverage ..............................................................................................................................1

Employers.......................................................................................................................1

Employees ......................................................................................................................2

Prohibited Acts .....................................................................................................................3

Defenses and Exceptions.......................................................................................................4

Disparate Treatment vs. Disparate Impact..............................................................................7

Proving a Disparate Treatment Claim ..............................................................................7

Proving a Disparate Impact Claim...................................................................................9

Enforcement and Filing Procedures ..................................................................................... 10

Waiver and Arbitration ........................................................................................................ 11

Remedies ............................................................................................................................ 13

III. Other Laws Prohibiting Age Discrimination ........................................................................ 13

Contacts

Author Contact Information ...................................................................................................... 14

Congressional Research Service

The Age Discrimination in Employment Act (ADEA): A Legal Overview

I. Introduction

The Age Discrimination in Employment Act (ADEA) of 1967,1 as amended, seeks to address the

longstanding problem of age discrimination in the workplace. The ADEA, which prohibits

employment discrimination against persons over the age of 40, was enacted “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 arising from the impact of age on employment.”2 The ADEA makes it unlawful for an

employer “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.”3 The statute not only applies to hiring, discharge, and

promotion, but also prohibits discrimination in employee benefit plans such as health coverage

and pensions. In addition to employers, the ADEA also applies to labor organizations and

employment agencies.

After it was enacted, the ADEA went through a series of amendments to strengthen and expand

its coverage of older employees. Originally, the ADEA only covered employees between the ages

of 40 and 65. Eventually the upper age limit was extended to age 70, and then eliminated

altogether. In 1978, enforcement authority of the ADEA was transferred from the Department of

Labor to the Equal Employment Opportunity Commission (EEOC).4

II. Requirements Under the ADEA

Coverage

Employers

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.”5 Companies

that are incorporated in a foreign country but that are controlled by a U.S. employer are subject to

the ADEA, and U.S. citizens employed by a U.S. employer to work in a foreign country are also

covered, unless compliance with the ADEA would violate the laws of that country.6 The

determination regarding whether a company is under an American employer’s control is based on

the interrelation of operations, common management, centralized control of labor relations, and

common ownership or financial control between the employer and the corporation. 7

29 U.S.C. §§ 621 et seq.

Id. at § 621.

Id. at § 623.

Reorg. Plan No. 1 of 1978, 92 Stat. 3781 (1978). See also 29 U.S.C. § 626(a).

Id. at § 630(b).

Id. at § 623(f)(1) and (h).

Id. at § 623(h)(3).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Although the statutory definition of “employer” technically excludes the United States, a separate

ADEA provision extends coverage to federal employees in certain military departments,

executive agencies, the United States Postal Service, the Postal Rate Commission, certain District

of Columbia agencies, federal legislative and judicial branch units with positions in the

competitive service, the Smithsonian Institution, the Government Printing Office, the General

Accounting Office, and the Library of Congress.8 Congressional employees of the House and

Senate are also covered by the ADEA pursuant to the Congressional Accountability Act of 1995.9

In addition, the term “employer” includes state and local governments. 10

Despite the fact that the ADEA applies to state governments, the United States Supreme Court in

Kimel v. Florida Board of Regents held that state employees could not sue states for monetary

damages under the ADEA.11 The Court reasoned that states have sovereign immunity and are

immune from suit unless the state consents or an exception applies. While, the Kimel decision

effectively eliminated the ability of state employees to bring suit for monetary damages against

states under the ADEA, the act may still be enforced against states by the EEOC, and state

employees may still sue state officials for declaratory and injunctive relief.

In addition to employers, labor organizations and employment agencies are also subject to the

ADEA. A labor organization is covered by the ADEA if it “exists for the purpose ... of dealing

with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms

or conditions of employment.”12 The ADEA defines a labor organization as an entity that has a

hiring hall or is a certified employee representative, or if not certified, holds itself out as the

employee’s bargaining representative. 13 Meanwhile, an employment agency and its agents are

subject to the ADEA if the agency “regularly undertakes with or without compensation” to

provide employees for an employer.14

Employees

In general, the ADEA covers employees who are forty years of age and older.15 Because the

statute prohibits discrimination against individuals regarding any terms or conditions of

employment, the act’s protections not only cover employees but also extend to both applicants for

employment and discharged ex-employees. Both private and public employees are generally

covered by the ADEA. For example, the ADEA applies to most federal employees, and the

Congressional Accountability Act of 1995 extended the rights and protections of the ADEA to

congressional employees. 16 State elected officials and their personal staff, appointees, and legal

Id. at § 633a(a).

2 U.S.C. §§ 1301 et seq.

29 U.S.C. § 630. The Supreme Court in EEOC v. Wyoming declared constitutional the extension of the ADEA to

state and local government employees as a valid use of Congress’ authority under the Commerce Clause. 460 U.S. 226

(1983).

528 U.S. 62 (2000). See also, CRS Report RL30364, Legal Issues Affecting the Right of State Employees to Bring

Suit Under the Age Discrimination in Employment Act and Other Federal Labor Laws, by (name redacted).

29 U.S.C. § 630(d).

Id. at § 630(e).

Id. at § 630.

Id. at § 631(a).

2 U.S.C. §§ 1301 et seq.

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

advisers are excluded from the definition of employee, although state employees covered by civil

service laws are considered employees.

Despite the ADEA’s exemption for the personal staff, appointees, and legal advisers of state

officials, such individuals may nevertheless be able to file age discrimination claims under a

separate law, the Government Employee Rights Act.17 State officials remain exempt and therefore

are not protected from age discrimination by either law. 18

The ADEA contains several notable exceptions to the prohibition against age discrimination. For

example, although mandatory retirement policies generally constitute a violation of the ADEA,

the statute permits employers to establish compulsory retirement for a bona fide executive or high

policymaker who has reached age 65 and is entitled to a pension benefit of at least $44,000.19

Under certain circumstances, state and local governments may establish mandatory retirement

requirements for their firefighters or law enforcement officers.20 Also exempt are federal civil

service employees who are air traffic controllers, firefighters, law enforcement officers, nuclear

materials couriers, and customs and border protection officers.21

Although the ADEA did at one point contain an exception for tenured faculty at institutions of

higher education, that exception has expired. Currently, however, the ADEA does allow

institutions of higher education to offer tenured employees who become eligible to retire

“supplemental benefits” to encourage them to voluntarily retire. Supplemental benefits are those

benefits above and beyond retirement or severance benefits generally offered to employees of the

institution. If certain requirements are met, supplemental benefits may be reduced or eliminated

on the basis of age without violating the ADEA. However, the ADEA continues to prohibit an

institution from reducing or ceasing non-supplemental benefits on the basis of age.22

Prohibited Acts

As noted above, the ADEA applies to a broad range of employment practices, including

discrimination because of age in hiring, placement, promotion, demotion, transfer, termination,

and discipline. Because the statute prohibits age discrimination with respect to all terms and

conditions of employment, discrimination regarding salary, leave, and other benefits may also

violate the act. In addition, the statute prohibits discrimination in referrals by employment

agencies, actions by unions, and retaliation against employees for filing or participating in an

ADEA claim or for opposing an employer’s discriminatory practices.23

42 U.S.C. § 2000e-16.

Although state court judges who are elected are clearly not covered by the ADEA, the status of appointed state court

judges was less clear until the Supreme Court ruled in Gregory v. Ashcroft that such judges fall within the exception to

the ADEA regarding “appointee on the policymaking level.” 501 U.S. 452, 467 (1991).

29 U.S.C. § 631(c)(1).

Id. at § 623(j).

5 U.S.C. § 8335.

29 U.S.C. at § 623(m).

Id. at § 623(d). In Robinson v. Shell Oil Co., a case involving Title VII of the Civil Rights Act, the Supreme Court

held that ex-employees may sue for retaliation. 519 U.S. 337 (1997). Since the ADEA is closely modeled after Title

VII, former employees appear to be protected from retaliation under the ADEA as well.

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Although the ADEA expressly prohibits retaliation in the private sector, the statute is less clear

with regard to retaliation involving age discrimination in the federal sector. In 2008, the Supreme

Court addressed this issue in Gomez-Perez v. Potter, holding that the ADEA does indeed prohibit

retaliation in federal employment. 24 Relying on precedents established in cases involving other

anti-discrimination statutes, the Court ruled that a prohibition against retaliation is encompassed

within the general prohibition against age discrimination in the federal sector.

Because the statute covers individuals who are age forty or older, younger employees are not

protected from age discrimination. Indeed, employers may engage in so-called reverse

discrimination—favoring employees over the age of forty—without violating the statute.

Furthermore, the Supreme Court has held that the ADEA does not prohibit employers from

discriminating against employees who are protected under the statute in favor of older members

of the protected class.25 According to the Court, although the ADEA “forbids discriminatory

preference for the young over the old,” it does not prohibit favoring the old over the young, even

when the younger and older employees are within the protected class, i.e., age forty or older.26 In

contrast, the Court has separately held that the ADEA does prohibit discrimination against older

employees in favor of younger employees who are older than forty years old.27

Before entering an employment relationship with their workers, most employers advertise the job

opening. As a result, such advertisements are subject to the ADEA, which prohibits

advertisements that contain age preferences unless age is a bona fide occupational qualification

for the position advertised.28 According to the EEOC’s regulations, advertisements that contain

phrases such as, “age 25 to 35,” “young,” “college student,” “recent college graduate,” “boy,”

“girl,” or similar terms are prohibited under the act, unless an exception applies. Even phrases

that favor some members of the class, but discriminate against others is prohibited, such as “age

40 to 50,” “age over 65,” “retired person,” or “supplement your pension.”29 On the other hand, the

request for the age or date of birth of an applicant on an employment application or use of the

phrase “state age” on a want ad is not automatically a violation because there may be legitimate

reasons for requesting the age or date of birth of an applicant.30 However, the EEOC will “closely

[scrutinize the application] to assure that the request is for a permissible purpose and not for

purposes proscribed by the Act.”31

Defenses and Exceptions

The ADEA provides several defenses for employers. These available defenses attempt to strike a

balance between the ability of employers to conduct their business and the interest of the

government in eliminating age discrimination in employment.

553 U.S. 474 (2008).

Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004).

Id. at 584.

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996).

29 U.S.C. § 623(e).

29 C.F.R. § 1625.4(a).

Id. at § 1625.4(b), 1625.5.

Id. at § 1625.5.

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Under one prominent exception, an employer will not be deemed to have violated the act when

the action taken against an employee is due to a “bona fide occupational qualification [BFOQ]

reasonably necessary to the normal operation of the particular business.”32 According to the

Supreme Court, the BFOQ must be more than “convenient” or “reasonable,” but must be

“‘reasonably necessary ... to the particular business.’”33 Under this narrow interpretation, an

employer must justify an age-based employment requirement by demonstrating (1) that the

requirement is reasonably necessary to the essence of its business, and (2) that an individualized

approach would be pointless or impractical. The second prong of this test can be established in

one of two ways. First the employer may show that it had a factual basis for believing that

persons over a certain age would be unable to perform the job safely. In the alternative, the

employer may show that “age was a legitimate proxy for the safety-related job qualifications by

proving that it is ‘impossible or highly impractical’ to deal with the older employees on an

individualized basis.”34 Although employers have attempted to use the BFOQ defense in a wide

variety of occupations, job-related age requirements have tended to be more successful when the

position in question, such as airline pilot or law enforcement officer, may affect public safety.

Another defense to a charge of age discrimination may apply if “the differentiation is based on

reasonable factors other than age [RFOTA].”35 Similarly, disciplining or discharging an employee

for good cause also constitutes a defense to the act.36 In both of these defenses, an employer

asserts that its adverse action did not involve age discrimination but rather was based on some

other factor. Such factors may include job performance, business cutbacks, or lack of

qualifications, among others. In addition, the Court has held that employers may, without

violating the ADEA, make employment decisions based on cost factors that are highly correlated

with age, such as pensions or high salaries, as long as their actions are not actually based on age. 37

Indeed, in Kentucky Retirement Systems v. Equal Employment Opportunity Commission,38 the

Supreme Court upheld a state retirement plan that imputed additional years of service to

employees who became disabled before becoming eligible for retirement at age 55, but did not,

for purposes of calculating pensions, impute additional years of service to employees who

became disabled after they became eligible for retirement. The Court ultimately held that the

retirement plan, which treated employees differently based on their pension status, was designed

to provide pension benefits to disabled employees and was not “actually motivated” by age. Thus,

the Court ruled that the retirement plan did not violate the ADEA.

29 U.S.C. § 623(f)(1).

W. Air Lines v. Criswell, 472 U.S. 400, 414 (1985).

Id.

29 U.S.C. § 623(f)(1).

Id. at § 623(f)(3). In McKennon v. Nashville Banner Pub. Co., the Court considered whether after-acquired evidence

of employee misconduct would bar an ADEA claim. The Court held that after-acquired evidence, which, if discovered,

would have led to the employee’s discharge, does not bar an ADEA claim, but may reduce the amount of damages. 513

U.S. 352 (1995).

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In Biggins, the plaintiff was fired weeks before he was scheduled

to vest under his employer’s pension plan, which allowed vesting after ten years of service. Although the Court held

that firing an employee to prevent vesting is actionable under the Employees Retirement Income Security Act (ERISA),

29 U.S.C. § 1001 et seq., such firing “would not constitute discriminatory treatment on the basis of age,” even though

an employee’s years of service may be highly correlated with age. Biggens, 507 U.S. at 612. However, the Court did

not address the possibility of pension status being used as a proxy for age. If vesting were based on an employee’s age,

then firing an employee to avoid vesting could possibly result in liability under both the ADEA and ERISA. Id. at 613.

Likewise, if an employer uses cost factors such as pension status or high salary as a proxy for age, then an ADEA

violation may occur.

554 U.S. 135 (2008).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Under the ADEA, it is also permissible for an employer to take action pursuant to a bona fide

seniority system or employee benefit plan, although neither the seniority system nor the benefit

plan may require mandatory retirement of employees because of age.39 However, the ADEA

explicitly allows voluntary early retirement as an incentive of employee benefit plans. In addition,

a bona fide employee benefit plan must satisfy the “equal cost equal benefit” principle that

provides parity between the amount employers spend on benefits for older and younger

workers.40 If it costs more to provide the same benefit to the protected class, the employer has the

option of paying the same amount for benefits of the protected class as it does for employees

outside of the protected class. This is so, even if it results in workers in the protected class

receiving fewer benefits. However, employers may not pay less for benefits of members of the

protected class than they pay for younger employees.

In recent years, there has been a debate over the extent to which the “equal benefits or equal

costs” principle should be applied to retired employees. In order to cut costs, some employers

have sought to provide one level of health benefits to retirees under age 65 to cover them until

they are eligible for Medicare and then reduce or eliminate the benefit when the retiree becomes

Medicare eligible. In Erie County Retirees Ass’n v. County of Erie,41 the Court of Appeals for the

Third Circuit ruled that the ADEA applies to retirees and held that the practice of providing

different benefits to older and younger retirees based on their eligibility for Medicare constitutes

age discrimination in violation of the act because Medicare eligibility is an “explicitly” agerelated factor. Fearing that employers might reduce or eliminate benefits for all retirees rather

than increase benefits for older, Medicare-eligible retirees, the EEOC, which exercised its

statutory authority to approve reasonable exceptions to the ADEA, 42 promulgated a rule stating

that it is not a violation of the act to alter, reduce, or eliminate health benefits for retirees when

the participant becomes eligible for Medicare or comparable state health benefits.43

Finally, as noted above, the ADEA permits employers to impose mandatory retirement with

respect to certain categories of employees, such as executives and high policymakers, as well as

firefighters and law enforcement officers.

29 U.S.C. § 623(f)(2). See also, Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). Bona fide is defined as

a system or plan that is not being used to evade the purposes of the act.

29 U.S.C. § 623(f)(2)(B). In Public Employees Retirement System of Ohio v. Betts, the Court rejected the “equal

benefits or equal costs” principle, holding that a bona fide employee benefit plan was permissible under the ADEA

unless an employee could establish that adoption of the plan was a subterfuge for discrimination. 492 U.S. 158 (1989).

The Older Workers Protection Act (P.L. 101-433), which amended the ADEA, restored the use of the “equal benefit or

equal cost” principle after it had been invalidated by the Supreme Court in Betts.

220 F.3d 193 (3d Cir. 2000).

29 U.S.C. § 628.

72 FR 72938. When proposed, the EEOC regulation was challenged in court, and a permanent injunction blocking its

implementation remained in effect for several years while the courts considered the issue. In 2007, the Third Circuit

ruled that the EEOC’s promulgation of the proposed rule was a reasonable exercise of the agency’s exemption

authority and lifted the injunction, thus allowing the EEOC to publish the final rule. AARP v. EEOC, 489 F.3d 558 (3d

Cir. 2007), cert. denied, 128 S. Ct. 1733 (2008). For more information, see CRS Report RS21845, Final Equal

Employment Opportunity Commission (EEOC) Rules on Retiree Health Plans and the Age Discrimination

in Employment Act (ADEA), by (name redacted).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Disparate Treatment vs. Disparate Impact

When bringing a civil case alleging employment discrimination, there are two types of claims that

a plaintiff can make: disparate treatment and disparate impact. Disparate treatment occurs when

an employer intentionally discriminates against an employee or enacts a policy with the intent to

treat or affect the employee differently from others because of the employee’s age. Such disparate

treatment claims require proof that the employer intended to discriminate against the complaining

party when it took the challenged employment action. Intent, the critical element of a disparate

treatment claim, may be shown directly (e.g., by discriminatory statements or behavior of a

supervisor towards a subordinate) or, perhaps more likely, by circumstantial evidence.

Meanwhile, disparate impact occurs when the employer’s acts or policies are facially neutral, but

have an adverse impact on a class of employees and are not otherwise reasonable. Unlike

disparate treatment claims, disparate impact claims may be established without proof of

discriminatory intent, relieving the victim of an often insurmountable burden. Although the

ADEA clearly allows disparate treatment claims, it was, for many years, unclear whether an

employee may recover under a disparate impact theory, which led to confusion for litigants and

lower courts alike. 44 In 2005, however, the Supreme Court held in Smith v. City of Jackson that

the ADEA does indeed authorize disparate impact claims. 45

Over the years, the courts have developed a complicated set of rules and procedures that govern

how disparate treatment and disparate impact claims are adjudicated. Many of the cases in which

these rules have evolved are Title VII cases, but their reasoning typically applies in the ADEA

context as well. These rules, which differ depending on the type of claim involved, are discussed

below.

Proving a Disparate Treatment Claim

In general, the courts evaluate individual disparate treatment claims under the ADEA in one of

two ways.46 When direct evidence of discrimination is lacking, plaintiffs are generally subject to

the burden-shifting framework established by the Supreme Court in McDonnell Douglas v. Green

and Texas Dept. of Community Affairs v. Burdine.47 When the plaintiff has direct evidence of age

discrimination, use of the McDonnell Douglas burden-shifting model may be unnecessary.48

Under the McDonnell Douglas burden-shifting framework, a plaintiff must first establish a prima

facie case, meaning that a plaintiff must allege facts that are adequate to support a legal claim.

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). (“The disparate treatment theory is of course available under the

ADEA, as the language of that statute makes clear.... By contrast, we have never decided whether a disparate impact

theory of liability is available under the ADEA.”) Id. at 609-610.

544 U.S. 228 (2005). For more information on this case, see CRS Report RS22170, The Age Discrimination in

Employment Act and Disparate Impact Claims: An Analysis of the Supreme Court’s Ruling in Smith v. City of Jackson,

by (name redacted) and (name redacted).

Under the ADEA, plaintiffs may also bring a separate type of disparate treatment claim akin to Title VII “pattern or

practice” suits, which involve habitual discriminatory actions on the part of the employer. Such class action claims

carry a heavy evidentiary burden that follow different rules of proof. See, e.g., Int’l Bhd. of Teamsters v. United States,

431 U.S. 324 (1977).

411 U.S. 792 (1973); 450 U.S. 248 (1981).

See, e.g., Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Once a plaintiff, by a preponderance of the evidence, establishes a prima facie case, then the

burden of production shifts to the employer, “to articulate some legitimate, nondiscriminatory

reason for the employee’s rejection.”49 If the employer successfully rebuts the employee’s prima

facie case by articulating such a reason, then the employee may still prevail if he can show that

the employer’s defense is merely a pretext and that the employer’s behavior was actually

motivated by discrimination.50 While the burden of production shifts to the employer to rebut the

employee’s prima facie case, the burden of persuasion remains on the plaintiff at all times. 51

Because the McDonnell Douglas framework was originally established in a Title VII case

involving failure to hire, there has been some confusion among the courts when applying this

model to ADEA claims, particularly when it comes to defining what constitutes a prima facie case

of age discrimination. Under the facts in the McDonnell Douglas case, a prima facie case would

be established when the plaintiff showed: “(1) that he belongs to a racial minority; (2) that he

applied and was qualified for a job for which the employer was seeking applicants; (3) that,

despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained

open and the employer continued to seek applicants from persons of complainant’s

qualifications.”52 As adapted to the ADEA context, therefore, a plaintiff generally must show that

he or she is a member of the protected age group, that he or she was adversely affected by an

employment action, and that such action was taken because of the employee’s age in order to

establish a prima facie case of age discrimination. 53 However, because the elements of a prima

facie case may vary somewhat depending on the type of employment action that was taken (e.g.,

failure to hire, discharge, demotion, compensation, etc.), a plaintiff may have to make

additional—or more specific—showings in order to establish a prima facie case. 54

As noted above, if an employer rebuts the plaintiff’s prima facie case by offering a legitimate

nondiscriminatory reason for its employment action, then the plaintiff must establish that the

employer’s reason is a pretext for discrimination. A plaintiff may show pretext in a variety of

ways, such as offering statistical evidence, proof of discriminatory statements by an employer, or

evidence of harassment, although presentation of such evidence does not guarantee that the

plaintiff will be successful. In addition, a plaintiff may, in some cases, demonstrate pretext by

offering evidence of discrimination against other employees. Indeed, in Sprint/United

McDonnell Douglas, 411 U.S. 792, 802 (1973).

St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In Hicks, the Supreme Court revisited the burden of proof

scheme established by McDonnell Douglas and Burdine, holding that it is not enough for the plaintiff to show that the

employer’s proffered reason was false. The plaintiff must show that the employer’s proffered reason is both false and

that the employer’s actions were motivated by discrimination. In Reeves v. Sanderson Plumbing Products, Inc., the

Court emphasized that “a plaintiff’s prima facie case of age discrimination, combined with sufficient evidence to find

that the employer’s asserted justification for its action was false, may permit the trier of fact to conclude that the

employer unlawfully discriminated,” and the plaintiff need not always introduce additional and independent evidence

of discrimination. 530 U.S. 133, 148-49 (2000).

Burdine, 450 U.S. 248, 255-256 (1981).

McDonnell Douglas, 411 U.S. at 802.

The plaintiff must show that age was a motivating factor in the employer’s decision, but does not have to show that it

was the only factor. Kralman v. Illinois Dept. of Veteran’s Affairs, 23 F.3d 150 (7th Cir. 1994), cert. denied, 513 U.S.

948 (1994).

For example, in discharge cases, the Court has held that a prima facie case of age discrimination does not require a

plaintiff to demonstrate that he or she was replaced by a person outside of the protected age class. Rather, replacement

by someone who is substantially younger—even if that person is also a member of the protected class—may be

sufficient for the plaintiff to demonstrate that he was replaced because of his age. O’Connor v. Consol. Coin Caterers

Corp., 517 U.S. 308 (1996).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Management Company v. Mendelsohn,55 the plaintiff attempted to introduce testimony by several

former employees who claimed they had suffered age discrimination at the hands of their

supervisors, even though those supervisors worked in another part of the company and were not

involved in any discriminatory action taken against the plaintiff. Noting that “[t]he question

whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is

fact based and depends on many factors,” the Supreme Court held that such evidence is neither

per se admissible nor per se inadmissible and therefore the district court should determine the

admissibility of such evidence on a case by case basis.56 Because many lower courts had been

excluding such evidence, the Court’s decision is expected to benefit employees who want to

introduce co-worker evidence in future cases.

Until recently, another type of disparate treatment claim was available to plaintiffs under the

ADEA. Originally recognized by the Court in the Title VII Price Waterhouse v. Hopkins case,57

“mixed-motive” claims involve employment actions that are based on both discriminatory and

nondiscriminatory reasons. Such claims generally follow a different method of proof.58 In 2009,

however, the Court decided Gross v. FBL Financial Services, Inc.,59 a case in which the Court

evaluated what types of evidence the parties must present and who bears the burden of proof in

mixed-motive ADEA cases. Sidestepping the evidentiary question presented, the Court

determined that an employer never bears the burden of persuasion because the traditional mixedmotive burden-shifting framework is not applicable to the ADEA. Finding instead that the ADEA

does not authorize the type of mixed-motive claims that are available under Title VII, the Court

held that an employee in a mixed-motive case bears the burden of establishing that “age was the

‘but-for’ cause of the challenged adverse employment action,”60 meaning that the employee must

show that age was the deciding factor, rather than just one of several motivating factors, behind

the employer’s action. This standard is likely to make it more difficult for plaintiffs to succeed in

age discrimination cases in which age is only one of several factors behind the adverse

employment decision. 61

Proving a Disparate Impact Claim

As noted above, the Supreme Court has clarified that plaintiffs may bring disparate impact claims

under the ADEA, reasoning that the ADEA is analogous to Title VII, under which disparate

impact claims are authorized.62 The process for bringing such claims, however, differs from the

process for proving a disparate treatment claim. In addition, because of differences between the

ADEA and Title VII, plaintiffs who decide to pursue disparate impact claims under the ADEA

552 U.S. 379 (2008).

Id. at 388.

490 U.S. 228 (1989).

Once a “plaintiff shows that an impermissible motive played a motivating part in an adverse employment decision,”

the burden shifts to the employer “to show that it would have made the same decision in the absence of the unlawful

motive.” Id. at 250. If the employer fails to make this showing, it will be held liable. 42 U.S.C. §§ 2000e-2(m), 2000e5(g)(2)(B).

129 S. Ct. 2343 (2009).

Id. at 2352.

For more information on the Gross case, see CRS Report R41279, Mixed-Motive Claims Under the Age

Discrimination in Employment Act: A Legal Analysis of the Supreme Court’s Ruling in Gross v. FBL Financial

Services, Inc., by (name redacted).

Smith v. City of Jackson, 544 U.S. 228 (2005).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

must comply with rules of proof that differ from the rules that govern disparate impact claims

under Title VII.

In order to bring a disparate impact claim under the ADEA, a plaintiff must first establish a prima

facie case of age discrimination by demonstrating that a given employment practice has a

disparate impact on members of the protected class. At this stage, a plaintiff must identify the

specific employment practice that is responsible for the disparate impact.63 The employer may

then rebut the prima facie case by showing that the adverse impact was attributable to a

reasonable factor other than age, a requirement based on the statutory provision that exempts

otherwise prohibited employment actions that are based on a reasonable factor other than age.

Until recently, there was confusion among the federal courts regarding the question of whether it

is the employee or employer who bears the burden of demonstrating that the challenged

employment practice is reasonable or unreasonable. In Meacham v. Knolls Atomic Power

Laboratory, the Supreme Court ruled that the employer is responsible for proving that its action

was in fact reasonable.64 The Court’s decision rested in part on its determination that the party

who claims the benefits of a statutory exception must bear the burden of proving its actions were

justified. 65 Ultimately, the result in the Meacham case appears to make it easier for plaintiffs to

prevail in disparate impact cases.

Enforcement and Filing Procedures

The EEOC is responsible for enforcing the provisions of the ADEA.66 In order to encourage

informal resolution of age discrimination disputes, the statute requires aggrieved employees to

file complaints with the EEOC before they are allowed to sue in federal court. The deadline for

filing an ADEA charge varies depending on several factors.67 Generally, a private sector

employee must file a complaint with the EEOC within 180 days of the alleged discriminatory act.

However, if the state where the alleged unlawful practice took place has an age discrimination

law and a corresponding enforcement agency, then the time by which a claimant must file with

the EEOC is extended to within 300 days of the alleged unlawful practice.68

After receiving a charge of unlawful discrimination, the EEOC conducts an investigation, and, if

the claim is found to have merit, the agency may seek compliance with the statute through

methods such as conciliation, conference, or persuasion.69 Once 60 days have elapsed after the

Id.

554 U.S. 84 (2008).

Id.

29 U.S.C. § 626(a). The Department of Labor was originally responsible for enforcement of the ADEA. The

authority was transferred to the EEOC in 1978 pursuant to Reorg. Plan No. 1 of 1978, 92 Stat. 3781 (1978).

The filing procedures for federal employees vary somewhat from the filing procedures for private sector employees.

Most notably, federal employees are required to seek resolution with the equal employment opportunity office at their

respective agency prior to filing a charge of discrimination with the EEOC. 29 C.F.R. § 1614.105.

29 U.S.C. § 626(d). Additional filing deadlines apply to suits that are filed in state court. In states with age

discrimination laws and an agency to administer such laws, the statute requires ADEA claimants to file suit in state

court. Id. at § 633(b). The Supreme Court, in Oscar Mayer & Co. v. Evans, held that this provision requires claimants

to pursue state claims prior to suing in federal court. However, the Court also held that this provision is satisfied by

filing with the applicable state agency, that such charges do not need to be filed within the state law filing period, and

that exhaustion of state remedies is not required before filing a complaint with the EEOC. 441 U.S. 750 (1979).

29 U.S.C. § 626(b).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

filing of a discrimination charge, then an ADEA plaintiff may file suit in federal court.70 If the

claimant decides to wait for a final determination from the EEOC, then he or she has 90 days to

file suit in federal court once notified of the agency’s final action. 71 It is important to note,

however, that the EEOC has the authority to sue on behalf of an individual, in which case the

individual’s right to bring suit yields to the EEOC.72

Over the years, there has been some confusion over what constitutes a charge for purposes of

triggering EEOC enforcement action. Under EEOC regulations, an ADEA complaint must, at a

minimum: (1) be in writing, (2) name the prospective respondent, and (3) generally allege the

discriminatory acts.73 In addition to these regulatory requirements, EEOC policy states that a

filing, in order to be deemed a charge, must contain a request for agency action to remedy the

alleged age discrimination. The agency’s position was validated by the Supreme Court in Federal

Express Corp. v. Holowecki,74 which held that a claimant’s submission of an improper form was

not fatal to her claim. According to the Court, “In addition to the information required by the

regulations ... if a filing is to be deemed a charge it must be reasonably construed as a request for

the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute

between the employer and the employee.”75 Although this permissive standard may lead to a

higher number of filings being deemed to be charges, the Court reasoned that giving

inexperienced litigants the benefit of the doubt is more consistent with the remedial purpose of

the ADEA.

Waiver and Arbitration

An employee may waive his rights under the ADEA if such waiver was knowing and voluntary.76

In order to be considered knowing and voluntary, a waiver must comply with detailed

requirements set forth in the statute.77 A waiver given in settlement of a charge filed with the

Id. at § 626(d). The statute gives private sector employees the right to a jury trial, but this right does not extend to

federal employees. Lehman v. Nakshian, 453 U.S. 156 (1981).

29 U.S.C. § 626(e).

Id. at § 626(c).

29 C.F.R. § 1626.6. The EEOC has a duty to accept charges that are submitted in person or over the telephone, and to

put these charges in writing.

552 U.S. 389.

Id. at 402.

29 U.S.C. § 626(f).

Id. at § 626(f)(1). A waiver is knowing and voluntary if:

(A) the waiver is part of an agreement between the individual and the employer that is written in a manner calculated to

be understood by such individual, or by the average individual eligible to participate;

(B) the waiver specifically refers to rights or claims arising under this chapter;

(D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which

the individual already is entitled;

(E) the individual is advised in writing to consult with an attorney prior to executing the agreement;

(F)(i) the individual is given a period of at least 21 days within which to consider the agreement; or

(ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a

group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement;

(G) the agreement provides that for a period of at least 7 days following the execution of such agreement, the individual

may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has

(continued...)

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

EEOC or in a civil action is not considered knowing and voluntary unless the general

requirements for a waiver are met and the individual has a reasonable opportunity to consider the

settlement. 78 The person asserting validity of the waiver has the burden of proving that the waiver

was knowing and voluntary. In addition, the waiver provision does not apply to the EEOC, nor

may a waiver be used to interfere with an employee’s right to file an age discrimination charge or

participate in an EEOC investigation or proceeding.

On occasion, employers may, either deliberately or inadvertently, fail to comply with the ADEA’s

waiver requirements. In such cases, the courts must determine what effect the employee’s

acceptance of the statutorily deficient waiver has on the waiver’s validity. In Oubre v. Entergy

Operations, Inc.,79 the employee received severance pay in return for waiving any claims against

the employer, but the waiver did not fully comply with the ADEA’s waiver requirements. The

Supreme Court, reasoning that retention of severance benefits does not ratify a statutorily invalid

waiver, held that the plaintiff did not have to return the money before bringing suit.80

A related issue is the effect of arbitration clauses on ADEA claims. The Court held in Gilmer v.

Interstate/Johnson Lane Corp. that the ADEA does not preclude enforcement of a compulsory

arbitration clause.81 The plaintiff in Gilmer signed a registration application with the New York

Stock Exchange (NYSE), as required by his employer. The application provided that the plaintiff

would agree to arbitrate any claim or dispute that arose between him and Interstate. Gilmer filed

an ADEA claim with the EEOC upon being fired at age 62. Interstate filed a motion to compel

arbitration based on the application and the Federal Arbitration Act (FAA),82 which was enacted

to change the “longstanding judicial hostility to arbitration....”83 Ultimately, the Court held that an

ADEA claim may be subject to compulsory arbitration in accordance with an arbitration

agreement contained in an employment contract.84 Similarly, in 2009, the Court held that

collective bargaining agreements that contain provisions requiring arbitration of ADEA claims are

enforceable. 85

(...continued)

expired;

(H) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a

group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs

the individual in writing in a manner calculated to be understood by the average individual eligible to participate, as

to—

(i) any class, unit, or group of individuals covered by such programs, any eligibility factors for such program, and any

time limits applicable to such program; and

(ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the

same job classification or organizational unit who are not eligible or selected for the program.

Id. at § 626(f)(2).

522 U.S. 422 (1998).

Id. at 428. An employer, however, may be entitled to deduct the original settlement amount from any damages

awarded in a subsequent lawsuit.

500 U.S. 20 (1990).

9 U.S.C. §§ 1 et seq.

Gilmer, 500 U.S. at 24. Courts are less likely to honor arbitration agreements contained in a collective bargaining

agreement. See, e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974).

Gilmer, 500 U.S. at 23.

14 Penn Plaza LLC v. Pyett, 129 S. Ct. 1456 (2009).

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Remedies

The remedies available under the ADEA are patterned on the Fair Labor Standards Act,86 and may

include injunctions, compelled employment, reinstatement, promotion, and back pay.87 In

addition, a willful violation of the act gives rise to liquidated damages, which are generally

computed by doubling the amount awarded to the plaintiff. 88 According to the Supreme Court in

Trans World Air Lines v. Thurston, “a violation of the Act [is] ‘willful’ if the employer knew or

showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.”89

Upon proving a claim of age discrimination, a plaintiff is entitled to reasonable attorney’s fees

and costs.90

In addition, anyone who interferes with the EEOC’s performance of its duties under the ADEA is

subject to criminal penalties amounting to a fine or up to one year of prison, or both.91

III. Other Laws Prohibiting Age Discrimination

The ADEA is not the only legal remedy available to employees who have been subject to age

discrimination. Other laws that may offer some degree of protection include the U.S.

Constitution, federal statutes such as the Age Discrimination Act and the Congressional

Accountability Act, and various state laws.

One alternative remedy to the ADEA is the U.S. Constitution. Although an employee seeking a

remedy for age discrimination in employment may decide to file a constitutional challenge based

on the Equal Protection Clause,92 such a claim is unlikely to be successful. Because the Equal

Protection Clause applies only to governmental entities, a plaintiff must show state action in order

to establish such a claim. Moreover, the courts generally review legislation involving age

classifications under a deferential standard of review, meaning that such legislation is highly

likely to survive judicial scrutiny. For example, in Gregory v. Ashcroft,93 the Supreme Court

considered an Equal Protection Clause challenge to a Missouri law that required state judges to

retire at age 70. Noting that “age is not a suspect classification under the Equal Protection Claus”

“and that the plaintiffs did not “have a fundamental interest in serving as judges,”94 the Court

reviewed the claim under the deferential rational basis standard. Ultimately, the Court held that

the state had a legitimate and rational basis for requiring retirement of their state judges to ensure

the competency and efficacy of their judiciary.

29 U.S.C. § 626(b).

Id. at § 216(b).

Id. at § 626(b). Compensatory and punitive damages are not available under the ADEA.

469 U.S. 111, 126 (1985).

29 U.S.C. § 216(b).

Id. at § 629.

U.S. Const. amend. XIV, § 1. The Equal Protection Clause states in part, “[n]o state shall ... deny to any person

within its jurisdiction the equal protection of the laws.”

501 U.S. 452 (1991).

Id. at 470.

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The Age Discrimination in Employment Act (ADEA): A Legal Overview

Other remedial alternatives to the ADEA may be found in other federal statutes.95 For example,

the Age Discrimination Act prohibits discrimination on the basis of age in federally funded

programs or activities.96 Although each federal agency is responsible for enforcing compliance

with respect to its funding recipients, the statute states that agencies are not authorized to take

action against recipients with respect to their employment practices. However, it is possible,

though not certain, that individuals may bring employment-related suits on their own. Meanwhile,

as noted above, the Congressional Accountability Act applies several existing civil rights, labor,

and workplace laws—including the ADEA—to employees of the legislative branch of the federal

government.97

Finally, in addition to federal laws, most states have laws that prohibit age discrimination in

private employment. The ADEA does not preempt such state laws, even when those laws are

more stringent than the ADEA.98

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.g

ov, 7-....

It is unclear whether plaintiffs may bring age discrimination in employment claims under certain provisions of the

Reconstruction Statutes, namely 42 U.S.C. § 1983 or 42 U.S.C. § 1985.

42 U.S.C. §§ 6101 et seq.

2 U.S.C. §§ 1301 et seq.

29 U.S.C. § 633(a).

Congressional Research Service

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