Introduction to the
Age discrimination in
employment act
(ADeA)
Proving an ADEA claim
As we learned in
Introduction to Employment Discrimination
Law, there are primarily two types of employment
discrimination laws: (1) laws which entitle the person in the protected class to equal
treatment; and (2) laws which require the person in the protected class to special
treatment. For example, the Americans
with Disabilities Act entitles certain persons with disabilities to "reasonable
accommodations" (or special treatment). On the other hand, Title VII entitles women
to be treated equally with men. The ADEA is like Title
VII. Persons 40 and older are not entitled to special treatment, they are just entitled to
equal treatment as compared to employees who are "substantially younger." There are two ways of
proving that someone has been treated unfairly: (1) disparate treatment; and (2) disparate
impact.
Disparate treatment
Disparate treatment cases require proof that the
employer intentionally mistreated the employee based on
the emploeye's age. As we learned in
Introduction to Employment Discrimination
Law, there are two means of proving disparate treatment:
(1) direct evidence; and (2) indirect evidence. An example of direct evidence would be:
"Tom, I am sorry but we are firing you today because you are so old." In other words, direct
evidence requires no inference or interpretation about what the employer actually meant. Obviously, most cases are
not proven through the use of direct evidence because an employer who is
discriminating based on age is not going to admit it.
Therefore, most age
discrimination cases must be proved using indirect evidence. Indirect evidence refers to
the McDonnell Douglas
burden-shifting analysis. The
McDonnell Douglas analysis requires the employee to
first establish a prima facie case of discrimination. To establish a
prima
facie case, an employee must show that: (1) he was within the protected class (forty
or over); (2) he was performing his job to the employer's legitimate expectations; (3) he
was discharged (or some other action that rises to the level of an adverse employment
action); and (4) the employer replaced him with someone substantially younger; or treated
someone more favorably who is substantially younger; or other such evidence that indicates
that it is more likely than not that his age was the reason for the adverse employment
action. See, Robin v. Espo Engineering Corp., 200 F.3d 1081 (7th Cir. 2000).
If the employee makes out a
prima facie
case, then the employer must present a non-discriminatory reason for the adverse
employment action. Once the employer presents the non-discriminatory
reason, then it is up to the employee to convince the factfinder that the reason the
employer gave is false (or pretextual) and the real reason is age discrimination.
If the trial is a jury trial, then the factfinder is the
jury.
Substantially younger requirement
If a
plaintiff is attempting to prove age discrimination
based upon the fact that younger employees are treated
more favorably, then the plaintiff must prove that the
younger employees are "substantially younger."
See, O'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308 (1996).
The circuit
courts vary
greatly in their interpretation of what constitutes "substantially younger."
For example, the
Seventh Circuit's general rule is that the age difference must be at least 10 years in
order to qualify as "substantially younger." See, Pitasi v. Gartner Group, Inc., 184 F.3d 709 (7th Cir. 1999).
On the other hand, the Eleventh Circuit has held
that an age difference as little as three years is "substantially younger." See,
Carter v. DecisionOne Corp. Through C.T. Corp., 122 F.3d 997
(11th Cir. 1997).
One related point to remember. It does not matter
whether the other employee is a member of the protected class or not. It just matters
whether the other employee is substantially younger.
For example, let's assume an
employee is 50 years old
and is replaced by another employee who is 40 years old. Both employees
are members of the
protected class (40 years and older); but because the employee has been
replaced by someone substantially younger, the plaintiff
can attempt to prove that the reason he or she was
replaced was based on age discrimination. But
let's assume that a 69 year old employee is replaced by
a 67 year old employee. That age difference is not
sufficient to make out a claim of age discrimination.
