Employment U4

Discrimination Based on Age 9-1

Title VII of the Civil Rights Act, which was discussed in the preceding chapters, prohib- its employment discrimination based on race, color, religion, gender, and national origin. In addition to Title VII, other federal legislation deals with employment discrimination because of other factors. This chapter covers the Age Discrimination in Employment Act, which prohibits employment discrimination based on age. The Age Discrimination in Employment Act Discrimination in terms or conditions of employment because of age is prohibited by the Age Discrimination in Employment Act of 1967 (ADEA). The act’s prohibitions, however, are limited to age discrimination against employees aged 40 and older. It was intended to protect older workers, who were more likely to be subjected to age discrimination in employment. (Although the ADEA’s protection is limited to older workers, state equal employment opportunity laws may provide greater protection against age discrimination. The New York Human Rights , for example, prohibits age discrimination in employ- ment against persons 18 and older.) 9-1a Coverage The ADEA applies to employers, labor unions, and employment agencies. Employers involved in an industry affecting commerce, with 20 or more employees, are covered by the act. U.S. firms that employ American workers in a foreign country are subject to the ADEA. Labor unions are covered if they operate a hiring hall or if they have 25 or more members and represent the employees of an employer covered by the act. The definition of employer under the ADEA includes state and local governments; the U.S. Supreme Court upheld the inclusion of state and local governments under the ADEA in EEOC v. Wyoming.1 However, in the case of Kimel v. Florida Board of Regents,2 decided in 2000, the Supreme Court held that the Eleventh Amendment of the U.S. Constitu- tion provides state governments with immunity from suits by private individuals under the ADEA.
256 Part 2 Equal Employment Opportunity Concept Summary 9.1 The Age DiscriminATion in employmenT AcT • The ADEA prohibits discrimination in employment based on age against employees aged 40 or older • ADEA coverage: + Employers with 20 or more employees + Labor unions operating a hiring hall or with 25 or more members + Employment agencies + Federal government employees 9-1b Provisions The ADEA prohibits the refusal or failure to hire, the discharge, or any discrimination in compensation, terms, conditions, or privileges of employment because of an individual’s age (40 and older). The act applies to employers, labor unions, and employment agencies. The main effect of the act is to prohibit the mandatory retirement of employees. The act does not affect voluntary retirement by employees. It does provide for some limited excep- tions and recognizes that age may be a bona fide occupational qualification (BFOQ). A plaintiff alleging a violation of the ADEA must establish a prima facie case that the employer has discriminated against the employee because of age. The plaintiff must demon- strate that age was “the determining factor” in the employer’s action. In Gross v. FBL Finan- cial Services, Inc.,3 the Supreme Court held that the language of the ADEA does not allow for “mixed motive” cases. Rather than showing that age was “a determining factor,” the plaintiff must show that age was the “but-for cause” of the employer’s action. The Court in Gross spe- cifically rejected the “mixed motive” approach used under Title VII (see Chapter 6). The process for establishing a claim under the ADEA is as follows: the plaintiff must establish a prima facie case of age discrimination; the employer-defendant must then offer a legitimate justification for the challenged action; and if the defendant offers such a jus- tification, the plaintiff can still show that the proffered justification is a pretext for age discrimination. Examples of violations of the ADEA include: • The mandatory retirement of workers over age 55 while allowing workers under 55 to transfer to another plant location or • The denial of a promotion to a qualified worker because the employee is over 50. While discrimination against older workers is prohibited by the ADEA, according to General Dynamics Land Systems, Inc. v. Cline,4 an employer that eliminated health insurance for workers under 50 but continued health insurance for the employees over 50 was held not to have violated the ADEA. What must a plaintiff alleging that he was fired because of his age show to establish a prima facie case of age discrimination? Must the employee demon- strate that the employer replaced him with a person under 40 (i.e., someone not protected by the ADEA)? The U.S. Supreme Court addressed that question in O’Connor v. Consolidated Coin Caterers Corp.,5 holding that whether the replacement was over or under 40 years of age was irrelevant. Because the ADEA prohibits discrimination on the basis of age, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside, as opposed to inside, the class protected by the ADEA (i.e., someone under 40 versus someone who hap- pens to be over 40). Subsequently, a number of lower courts have dealt with similar cases, wherein the plaintiff’s replacement was also a member of ADEA’s protected class but also was significantly younger than the plaintiff. The following case is a relatively recent example.

CASE 9.1 Harmon v. EartHgrains Baking CompaniEs, inC. 2009 WL 332705 (U.S. Ct. App. 6th Cir. 2009) Facts: Beginning in 2002, Michael Harmon managed Earthgrains’s facility in Bowling Green, Kentucky, in its West Tennessee Zone. In October 2005, Earthgrains hired 32-year-old Bradley Jordan as vice-president of the West Tennessee Zone. Jordan supervised Harmon. At the time of Jordan’s hire, Harmon’s employee file contained no negative entries. During parts of November and December 2005, Harmon missed work for health-related reasons. When Harmon returned to work in December 2005, he and Jordan toured various stores in the Bowling Green area to evalu- ate Harmon’s performance. During that review, Jordan told him: “I bet you think that your older people are your best people…. well, they’re not. They’re not your best people.” Jordan’s assessment of Harmon’s performance in December 2005 was negative. The evaluation cited numer- ous areas requiring improvement, including poor product displays, products that were outdated and out of stock, and lack of “pride.” While reviewing Earthgrains’s profit and loss statements in February 2006, Jordan learned that an Earthgrains deliv- ery truck in Bowling Green had been involved in two sepa- rate accidents, in December 2005 and January 2006. In the first accident, the truck, operated by employee Lewis Geron, struck a deer. In the second accident, the truck, operated by employee Chuck (Casper) Glass, hit a doghouse that fell from another vehicle. The employee drivers reported both accidents to mechanics in Earthgrains’s in-house repair garage in Nashville. Although the truck sustained damage after each accident, the mechanics advised the Bowling Green employees that the truck remained functional until they could make the required repairs. Accordingly, employ- ees in Bowling Green continued to drive it. On February 8, 2006, Jordan confronted Harmon about the accidents. Jordan asked Harmon why he did not complete an accident report after each collision, which would have notified Jordan of the incidents. Jordan allegedly informed him for the first time that Earthgrains’s policy required that all accidents be reported to the “zone leadership team,” including accidents that did not involve injuries or liability issues. Jordan suspended Harmon pending further investigation, documenting his concern that Harmon permitted the damaged truck to be driven by employees on both occasions without first ensuring that it was safe to drive. The next day, Danny Gaither, zone human resources manager, notified Lisa Millisor, Earthgrains’s human resources director in Atlanta, that he intended to terminate Harmon. Earthgrains did not fill the vacancy created by Harmon’s termination; rather, it assigned Mark Carter, an existingdistrict manager in Glasgow, Kentucky, who was 10 years younger than Harmon (aged 58 at the time), to manage the area previously supervised by Harmon. Carter not only absorbed permanently all of Harmon’s job responsibilities, but he also continued to serve as district manager in Glasgow, thereby increasing his workload. As part of the realignment, Earthgrains also assigned four truck routes managed previ- ously by Carter in Leitchfield, Kentucky, to another exist- ing district manager, Joe Kocher. According to the affidavit of Mitchel Cox, regional vice-president of Sara Lee’s South Region, Earthgrains decided to make these adjustments before it terminated Harmon. It also announced its restructuring plans four months before Harmon filed the present lawsuit. Issue: Given that Harmon’s replacement was also over 40 years of age, and given that he absorbed plaintiff’s duties into his current job, rather than actually taking Harmon’s job as such, did the plaintiff have a viable ADEA case? Decision: Without citing O’Connor, the court of appeals seems to have had no hesitancy to rule for the defendant on these facts. Because Harmon was not replaced by Carter, the appellate panel held that he failed to present a prima facie case of age discrimination. Nor did the judges buy the plaintiff ’s contention that the company’s so-called “reorganization” was a pretext to disguise its discriminatory termination of the plaintiff in favor of his younger counterpart, Carter. Observed the court, “Simply stated, Harmon failed to demonstrate that Earthgrains’s articulated reason for not replacing him—its plan to restructure its zones and personnel—was intended to conceal its alleged prior dis- criminatory conduct and defeat his prima facie case. Mitchel Cox, Sara Lee’s regional vice president, stated in his affidavit that Sara Lee’s decision to restructure Earthgrains’s zones and move the Bowling Green depot and two other depots from Earthgrains’s West Tennessee Zone to its Kentucky/Indiana Zone was made before Earthgrains terminated Harmon and before it became aware that Harmon intended to file a lawsuit. According to Cox, Earthgrains made a PowerPoint presenta- tion announcing its restructuring decision four months before Harmon filed suit. Cox also confirmed that Carter’s absorp- tion of Harmon’s duties were permanent and that no new dis- trict manager positions were created as a result of the vacancy left by Harmon. Carter verified in his affidavit that he did absorb Harmon’s duties, that his overall job responsibilities increased as a result, and that ‘they remain so to this day.’” Thus, the fact that the 58-year-old Harmon’s workload was picked up by the 48-year-old Carter was of no relevance one way or the other. The relevant facts were that (1) Harmon was never actually replaced (either by a younger person or anybody else, for that matter), and (2) the reorganization under which Harmon’s duties were reassigned to a current employee—some of whose existing duties likewise were reassigned—was a fait accompli before Harmon’s termination.

ThE WORKING LAW 14 Former General Mills Employees File Class Action ADEA Suit Over view 1.
This pattern or practice age discrimination action case presents the issue of whether employees can knowingly and voluntarily waive federal Age Discrimination in Employ- ment Act (ADEA) claims and their rights to a jury trial and to proceed collectively with other similarly situated persons if their former employer secured a purported waiver of those claims and rights without complying with the minimum requirements of the Older Workers Benefit Protection Act (OWBPA). 2. In June 2012, General Mills announced a mass layoff of about 850 employees. The layoffs resulted from a companywide initiative called “Project Refuel.” 3. Approximately half of those persons who lost their jobs as a result of General Mills’ Project Refuel were based in the Twin Cities. Concurrently with the terminations, General Mills was hiring and promoting younger employees to replace the Plaintiffs and other employees similarly situated whom General Mills terminated as part of Project Refuel.

The Project Refuel terminations, as discussed more fully below, adversely affected employees age 40 or over at much higher rates than younger employees. In this action, fourteen persons who were employed with General Mills in the Twin Cities as of June 1, 2012, and who were involuntarily terminated from employment later that year as part of the Project Refuel program, assert claims for intentional and disparate impact age discrimination against General Mills under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., both in behalf of themselves as well in behalf of other employees similarly situated. 5. General Mills informed employees terminated as part of Project Refuel that, to receive any severance pay, they were required to sign and return a “Release Agreement” form, drafted by General Mills, which was the same or essentially the same for all terminated employees. 6. In connection with its request that terminated employees execute its Release Agreement form, General Mills provided Project Refuel terminated employees who were age 40 or over with certain information about the job titles and ages of some employees termi- nated and retained as part of that program. General Mills did not, however, provide individual employees with disclosures that provided information about the full scope of the Project Refuel termination program, and instead provided each with only a portion of that information. When the partial data given to various terminated employees is aggregated, it shows that employees age 40 and over were terminated at exception- ally higher rates than younger employees, and that the risk of involuntary termination as part of Project Refuel increased dramatically with increased age. 7. The General Mills-produced data about its 2012 Project Refuel employee terminations, when combined, shows the exceptionally strong correlation between higher age and increased risk of termination. A statistical p-value calculation performed on the data to ascertain the likelihood that this correlation between age and rates of termination could have occurred if age (or a factor closely-related to age) were not used in making the termination selection decisions generates a very tiny p-value of only 0.0000000000 000000000000000000000000000000, whereas any p-value smaller than 0.05 is deemed to be statistically significant and any p-value smaller than 0.01 is deemed to be highly statistically significant by professional statisticians. 8. The “Release Agreement” form that General Mills required employees to sign as a condition of receipt of severance pay, and which was later signed by the above-named Plaintiffs, includes one paragraph that sets forth a broad release by the employee of “causes of action” and “claims” against General Mills. Another paragraph on the same page in the same agreement states that the employee agrees that “any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release,” “will be resolved exclusively through a final and binding arbi- tration on an individual basis and not in any form of class, collective or representative proceeding.” This latter paragraph thus purports to waive two important rights granted to employees under the ADEA: the right to a trial by jury on disputed issues of fact related to their claims for age discrimination and the right to proceed collectively in one action with others who are similarly situated. 9. Unlike other U.S. anti-discrimination statutes, the ADEA, through a 1990 amendment known as the Older Workers Benefit Protection Act (“OWBPA”), provides in plain language that “[a]n individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary” (emphasis added), and the ADEA sets out mandatory minimum requirements that must be satisfied for a waiver of “any right or claim” under the ADEA to “knowing and voluntary.” 29 U.S.C. § 626(f). 10. In this case, in addition to asserting claims for age discrimination under federal law as referenced above, the above-named Plaintiffs, in behalf of themselves and oth- ers similarly situated, seek declaratory relief from the Court. In particular, Plaintiffs seek a declaration that, in connection with its Project Refuel Termination Program, General Mills failed to satisfy the mandatory minimum statutory requirements for an employer to obtain from a discharged employee a “knowing and voluntary” waiver of “any right or claim” under the ADEA and that, as a result, the “Release Agreement” signed by all of the above-named Plaintiffs and by other similarly situ- ated persons was and is not “knowing and voluntary” under the ADEA and thus was and is ineffective as a matter of law to waive “any right or claim” of any such individual under the ADEA, including the rights to a jury trial and to proceed col- lectively in pursuing relief under the ADEA. 11. If there is any dispute of fact related to whether General Mills can meet its affirmative burden to prove that the “Release Agreement” forms signed by the Plaintiffs and others similarly situated are “knowing and voluntary,” and thus whether they could constitute valid waivers of any right or claim under the ADEA of the employees who signed them, Plaintiffs demand a jury trial on such issues. The right to a jury trial on issues of fact relating to the validity or lack thereof of what is alleged to be a binding agreement to arbitrate is specifically provided for in the U.S. Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”). The FAA states that when a “party aggrieved by the alleged failure” of another party to arbitrate “under a written agreement for arbitration” brings a petition to compel arbitration, and when there is a dispute about the “making of the arbitration agreement,” if the party opposing arbitration demands a jury trial, “upon such demand the court shall make an order referring the issue or issues to a jury in the manner pro- vided by the Federal Rules of Civil Procedure or may specially call a jury for that pur- pose.” 9 U.S.C. § 4. The statute further provides that arbitration will not be compelled “[i]f the jury find that no agreement in writing for arbitration was made.” 12. While it may be the case for employees who signed it that the General Mills “Release Agreement” form constitutes a valid waiver of rights or claims of other types, the “Re- lease Agreements” signed by the above-named Plaintiffs and others similarly situated were not “knowing and voluntary” under the ADEA because General Mills did not satisfy the minimum “knowing and voluntary” requirements set forth in 29 U.S.C. § 626(f) and in related regulations, and were thus ineffective as a matter of law to waive or impair any right or claim under the ADEA of any such person who signed it.
some specific exemptions and defenses on which the defendant may rely. The following are not violations: • • • actions pursuant to a bona fide seniority system, retirement, pension, or benefit system, for good cause, or for a “reasonable factor other than age.” The act also recognizes that age may be a BFOQ and permits the mandatory retire- ment of certain executive employees at age 65. The ADEA was amended in 1990 to provide an additional defense for employers: Where the employer employs American workers in a foreign country and compliance with the ADEA would cause the employer to violate foreign law, the employer is excused from complying with the ADEA. In Mahoney v. RFE/RL Inc.,6 the employer’s compliance with German law requiring employees to enforce a labor contract setting retirement age at 65 was held to be a defense under the foreign law exception of the ADEA. Bona Fide Seniority or Benefit Plan The ADEA allows an employer to observe the terms of a bona fide seniority system or employee benefit plan, such as a retirement or pension plan, as long as the plan or system is not “subterfuge to evade the purpose of this Act.” The ADEA provides, however, that no seniority system or benefit plan “shall require or permit the involuntary retirement of any individual.” In Public Employees’ Retirement System of Ohio v. Betts,7 the Supreme Court held that the ADEA exception protected any age-based decisions taken pursuant to a bona fide ben- efit plan as long as the plan did not require mandatory retirement. In response to that decision, Congress passed the Older Workers Benefit Protection Act, which became law in October 1990. The law amended the ADEA to require that any differential treatment of older employees under benefit plans must be “cost-justified.” That is, the employer must demonstrate that the reduction in benefits is only to the extent required to achieve approxi- mate cost equivalence in providing benefits to older and younger employees. General claims that the cost of insuring individuals increases with age are not sufficient; the employer must show that the specific level of reductions for older workers in a particular benefit program is no greater than necessary to compensate for the higher cost of providing such benefits for older workers. Reasonable Factor Other Than Age The ADEA allows employers to differentiate between employees when the differentia- tion is based on a reasonable factor other than age. For example, an employer may use a productivity-based pay system, even if older employees earn less than younger employees because they do not produce as much as younger employees. The basis for determining pay would be the employees’ production, not their age. Similarly, when a work force reduc- tion is carried out pursuant to an objective evaluation of all employees, it does not violate the act simply because a greater number of older workers than younger workers were laid
off according to Mastie v. Great Lakes Steel Co.8 In addition, the employer is permitted to discipline or discharge employees over 40 for good cause. In Hazen Paper Co. v. Biggins,9 the Supreme Court held that discrimination directed against an employee because of his years of service is not the same as discrimination because of age; hence, the employer’s conduct in allegedly firing an employee to prevent him from becoming eligible for vesting under the pension plan was based on a factor other than age. The Supreme Court’s decision in Hazen Paper was based on the fact that the ADEA has a specific exemption for employer actions based on a factor other than age. The Court did not decide the question of whether a disparate impact claim may be brought under the ADEA. Disparate impact claims, you recall, involve challenges to apparently neu- tral employment criteria that have a disproportionate impact on a protected group of employees—in the case of the ADEA, employees 40 and older. After the Hazen Paper deci- sion, the federal courts of appeals have differed on the question of whether an age discrimi- nation claim based on the disparate impact theory is possible. In the following decision, the Supreme Court considered whether a disparate impact claim of age discrimination is available under the ADEA.

CASE 9.2 smitH v. City of JaCkson, mississippi 544 U.S. 228 (2005) [The City of Jackson, Mississippi adopted a pay plan in May 1999 that was intended to bring the starting salaries of police officers up to the average of other police departments in the region. The city granted raises to all police officers, but the officers with less than five years of tenure received proportionately greater raises than officers with more than five years of tenure. Most of the officers who were older than 40 years of age had more than five years tenure. A group of older officers filed suit against the city, alleging that the differential raise policy violated the Age Discrimination in Employment Act. They alleged that the city had engaged in intentional age discrimination, and also that the pay raise policy had a disparate impact against the older officers. The trial court dismissed the suit, and the U.S. Court of Appeals affirmed the dismissal. The officers then appealed to the U.S. Supreme Court.] Stevens, J. … [This] suit raises the question whether the “disparate- impact” theory of recovery announced in Griggs v. Duke Power Co. for cases brought under Title VII of the Civil Rights Act of 1964, is … [available] under the ADEA…. As enacted in 1967, § 4(a)(2) of the ADEA … provided that it shall be unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportuni- ties or otherwise adversely affect his status as an employee, because of such individual’s age….” Except for substitution of the word “age” for the words “race, color, religion, sex, or national origin,” the language of that provision in the ADEA is identical to that found in § 703 (a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlier statute. Unlike Title VII, however, § 4(f)(1) of the ADEA contains language that significantly narrows its coverage by permitting any “otherwise prohib- ited” action “where the differentiation is based on reasonable factors other than age” [the RFOA provision]. In determining whether the ADEA authorizes dispa- rate-impact claims, we begin with the premise that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes…. In Griggs, a case decided four years after the enactment of the ADEA, we considered whether § 703 of Title VII prohibited an employer “from requiring a high school education or passing of a standardized general intel- ligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a long- standing practice of giving preference to whites.” Accepting the Court of Appeals’ conclusion that the employer had adopted the diploma and test requirements without any intent to discriminate, we held that good faith “does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” We explained that Congress had “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” … We thus squarely held that § 703(a) (2) of Title VII did not require a showing of discriminatory intent…. While our opinion in Griggs relied primarily on the purposes of the Act, buttressed by the fact that the EEOC had endorsed the same view, we have subsequently noted that our holding represented the better reading of the statutory text as well. Neither § 703(a)(2) nor the comparable language in the ADEA simply prohibits actions that “limit, segregate, or classify” persons; rather the language prohibits such actions that “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s” race or age…. Thus the text focuses on the effects of the action on the employee rather than the motivation for the action of the employer. Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be cognizable under the ADEA. Indeed, for over two decades after our decision in Griggs, the Courts of Appeal uniformly interpreted the ADEA as authorizing recovery on a “disparate-impact” theory in appropriate cases. IT WAS ONLY AFTER our decision in Hazen Paper Co. v. Biggins that some of those courts concluded that the ADEA did not authorize a disparate-impact theory of liability. Our opinion in Hazen Paper, however, did not address or comment on the issue we decide today. In that case, we held that an …