Cihon/Castagnera, Employment & Labor Law, 7e Ch 9 Instructor’s Manual 1

Chapter 9: DISCRIMINATION BASED ON AGE

INTRODUCTION

This chapter covers the Age Discrimination in Employment Act (ADEA) passed in 1967. The act prohibits
employment discrimination based on age, if the age is 40 years old or above. While claims made under the
ADEA are subject to the same burden shifting structure as Title VII discrimination claims, the ADEA affords
less protection due to many exclusions and exceptions to the law. For example, while disparate impact been
just recently been recognized as a viable claim under the ADEA, the test is quite narrow. This chapter also
discusses the Older Workers Benefit Protection Act, which amended the ADEA in 1990. This act protects
workers from unscrupulous employers who attempt to pressure outgoing employees into signing aged
discrimination claim waivers in order to receive early retirement or severance benefits.

OUTLINE

I. The Age Discrimination Employment Act (ADEA)

A. The ADEA prohibits discrimination in terms or conditions of employment because of an

employee's age being 40 or over. Many states have similar laws extending protection to even
younger employees.

1. The ADEA covers employers (including state and governments), unions, and
employment agencies in an industry affecting commerce, it if has 20 or more employees.
In EEOC v. Wyoming the Supreme Court held that state governments were subject to the
ADEA. However, in Kimel v. Florida Board of Regents, decided in January 2001, the
Supreme Court held that the 11th Amendment provides state governments with immunity
from suits, by private individual, for damages under the ADEA.

Note to professor: After Kimel, state governments are NOT immune to suites brought by
the EEOC (as opposed to private individuals). States are not immune from a federal suit
seeking to compel the state to adhere to federal law. The EEOC may seek any remedy
available under the law, including make whole remedies.

B. Age can be a BFOQ.

C. Plaintiff must prove a prima facie case, as is required in Title VII cases, however the
ADEA does not include mixed-motive cases, as Title VII does. The Plaintiff has a higher burden
of proving as was the “but for” factor, rather than one of the “determining factors.”

1. In order to establish a claim, the plaintiff must establish a prima facie case; if the
employer then offers a legitimate reason for the action, then the plaintiff must show the
reason is being used as pretext for age discrimination.

a) Two examples of age discrimination are:

(1) mandatory retirement of workers over age fifty-five, while

allowing workers under fifty-five to transfer to another plant or location;
and

(2) denial of promotion to qualified worker who is over fifty years

old.
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CASE 9.1 Gross v. FBL Financial Services, Inc.

557 U.S. 167 (U.S. Supreme Ct. 2009) Formatted: Instructor Manual, Left, Border: Box: (Single
solid line, Auto, 0.5 pt Line width)

Background: Jack Gross began working for respondent FBL Financial Group, Inc. [FBL], in 1971. As of
2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old,
Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred
many of Gross' job responsibilities to a newly created position—claims administration manager. That
position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in
her early forties. Gross filed suit, alleging that FBL demoted him in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), which makes it unlawful for an employer to take adverse action
against an employee “because of such individual's age.” At the close of trial, and over FBL's objections,
the District Court instructed the jury to enter a verdict for Gross if he proved, by a preponderance of the
evidence, that he was demoted and his age was a motivating factor in the demotion decision, and told the
jury that age was a motivating factor if it played a part in the demotion. The jury returned a verdict for
Gross. FBL appealed to the U.S. Court of Appeals for the Eighth Circuit, which held that the jury
instruction had been incorrect because it applied the standard established for “mixed motive” cases under
Title VII. Gross appealed to the U.S. Supreme Court.

Issue: Is the “mixed motive” analysis under Title VII also appropriate for cases under the ADEA?

Decision: The mixed motive analysis under Title VII is not appropriate for use under the ADEA; the trial
court’s instruction to the jury was in error. After the Supreme Court decision in Price Waterhouse v.
Hopkins, Congress amended Title VII to explicitly authorize discrimination claims where an improper
consideration was “a motivating factor” for the adverse employment. But Congress did not similarly
amend the ADEA to provide that a plaintiff may establish discrimination by showing that age was simply
a motivating factor. Given the difference between the language of Title VII and the ADEA the
interpretation of the ADEA is not governed by Title VII decisions. The ADEA's language does not
authorize an alleged mixed-motives age discrimination claim. The ordinary meaning of the ADEA's
requirement that an employer took adverse action “because of” age is that age was the “reason” that the
employer decided to act. To establish a disparate-treatment claim under the plain language of the ADEA,
a plaintiff must prove by a preponderance of evidence that age was the “but-for” cause of the employer's
adverse decision. The burden of persuasion does not shift to the employer to show that it would have
taken the action regardless of age, even when a plaintiff has produced some evidence that age was one
motivating factor in that decision.

CASE 9.2 O’CONNOR V. CONSOLIDATED COIN CATERERS CORP.

517 U.S. 308 (1996)

Background: James O’Connor was employed by Consolidated Coin Caterers Corporation and was fired at
age fifty-six. He filed suit under the ADEA, alleging that he was fired because of his age. The trial court
granted the employer’s motion for summary judgment, and O’Connor appealed. The U.S. Court of
Appeals for the Fourth Circuit held that in order to establish a prima facie case, a plaintiff must prove
that: (1) he was in the age group protected by the ADEA (aged forty or older); (2) he was discharged or
demoted; (3) at the time of his discharge or demotion, he was performing his job at a level that met his
employer’s legitimate expectations; and (4) following his discharge or demotion, he was replaced by
someone, of comparable qualifications outside the ADEA’s protection (someone under forty). Because

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O’Connor was replaced by a person who was forty years old, the court of appeals concluded that the last
element of the prima facie case had not been established, and affirmed the trial court’s grant of summary
judgment. O’Connor then appealed to the U.S. Supreme Court.

Issue: Must an employee demonstrate that he was replaced by someone under the age of forty in order to
establish a prima facie case of age discrimination in violation of the ADEA?

Decision: In this case, the Supreme Court reversed the judgment of the Fourth Circuit. A plaintiff under
the ADEA does not have to show that he was replaced by someone under forty.

THE WORKING LAW

EEOC Sues Kanbar Property Management for Age Discrimination:
Long-Time Property Manager for Downtown Tulsa Skyscrapers Booted for ‘Younger,
Prettier’ Replacements, Federal Agency Charges

Kanbar Property Management LLC (KPM), which manages several down-town Tulsa
commercial office buildings, violated federal law by terminating one of its long-time and well-
qualified property managers because of her age, 53, the U.S. Equal Employment Opportunity
Commission (EEOC) charged in a lawsuit.

According to the EEOC’s suit, KPM informed Toni Strength that “due to a reorganization of
services, it has become necessary to reduce the administrative management staff” and that her
property manager position had been “eliminated effective October 29, 2010.” Two days later,
after its supposed restructuring, KPM replaced Toni Strength with two new property managers,
ages 23 and 39, because its chief operating officer wanted “younger and prettier” property
managers to meet and entertain potential tenants after business hours.

Such alleged conduct violates the Age Discrimination in Employment Act of 1967 (ADEA),
which makes it unlawful to discharge any employee over the age of 40 because of age.

2. Defenses under the ADEA include the executive exemption, BFOQ's, actions
pursuant to a bona fide seniority or benefit plan, or based on a factor other than age.

3. Another defense, added in 1990, provides that an American employer who

employs U.S. citizens abroad is excused from complying with the ADEA if such
compliance would violate the law of the host country, as in Mahoney v. RFI/RL Inc. (p.
248)

4. Observing the terms of a bona fide seniority plan or benefit plan is not a violation
of the ADEA as long as such plan is not a subterfuge to evade the purposes of the ADEA;
no plan can require the involuntary retirement of any individual.

5. Public Employees' Retirement System of Ohio v. Betts—the Supreme Court in

1980 held that could limit benefits to older workers as long as the employer didn't require
involuntary retirement.

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6. The OWBPA of 1990 added the requirement that the benefit plan treatment of
older workers must be cost justified—the employer needn't equalize benefits between
older and younger employees if demonstrate cost equivalency of benefits to older and
younger employees.

7. Actions based on a reasonable factor other than age do not violate the ADEA.

8. Reductions based on an objective performance evaluation are acceptable, Mastie

v. Great Lakes Steel.

9. Disciplining or discharging employees for good cause is acceptable.

10. Hazen Paper Co. v. Biggins held that actions based on years of service are not
the same as actions based on age.

Note to professor: One would think that public policy or good faith and fair dealing (or
perhaps ERISA) would prohibit an employer from terminating an employee simply to
deny the employee the right to vest under a pension plan.

11. Hazen Paper raised the question of whether claims of disparate impact age
discrimination are possible under the ADEA. Court of Appeals courts were split, so the
Supreme Court decided the issue, in Smith v. City of Jackson, Mississippi, in 2005.

CASE 9.3 SMITH V. CITY OF JACKSON, MISSISSIPPI

544 U.S. 228 (2005)

Background: Having recognized that their starting salaries for police officers was lower than starting
salaries for police officers in other cities in the region, the City of Jackson, MS adjusted its pay scale,
raising salaries. Under the adjustment, officer with less than five years tenure received a higher
percentage raise than those who had been with the police department for longer than that. The older
officer claimed 1) intentional discrimination on the basis of age, and 2) disparate impact on the basis of
age.
Issue: (1) Is disparate impact a viable legal theory in ADEA claims, and (2) if so, is it applicable here?

Decision: (1) Yes. A disparate impact claim can be made under the ADEA. However, the test is more
narrow than under other discrimination laws, such as Title VII of the Civil Rights Act. If an employer can
establish a “reasonable factor other than age” (RFOA) for it’s decision, then the claim is not viable. This
is not as rigorous a standard as was required in Griggs, where the employer must show a legitimate
business necessity. Inherent in the legitimate business necessity construct is that no other non-
discriminatory option exists to meet the business necessity. This standard does not apply to the ADEA.

(2) No: In this case, the City has offered a reasonable factor other than age, and that was to raise pay rates
to the regional norms.

Note: the Court’s opinion did not address the claim of intentional discrimination.

ANSWERS TO CASE QUESTIONS

SMITH V. CITY OF JACKSON, MISSISSIPPI
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544 U.S. 228 (2005)

1. Most older officers had been on the force for a longer period, so they did not qualify for the
higher percentage raises, which the city earmarked for less-senior officers because of their modest base
salaries. Retention and recruitment were motives for the move.

2. Justice Stevens explained that Congress had “directed the thrust of the Act to the consequences
of employment practices, not simply the motivation.” The Court therefore had held that § 703(a)(2) of
Title VII did not require a showing of discriminatory intent. The Court’s opinion in Griggs relied
primarily on the purposes of the Act, buttressed by the fact that the EEOC had endorsed the same view;
however, in subsequent cases the Court noted that its holding represented the right 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. In other words, the text focuses on the effects of the action on the
employee rather than the motivation for the action of the employer.

3. The ADEA’s recognition of reasonable factors other than age, said the Court, is simply a
reasonable, common-sense recognition that an employee’s ability to perform in a position will differ with
age in many situations. Thus, the dynamic nature of this protected category, as opposed to the usually
static character of categories such and race and sex, require that the courts view disparate impact claims in
light of the specific circumstances on a case-by-case basis. The ADEA was not intended to create a
protected “class” of people, but to make discrimination on the basis of age illegal.

4. The Plaintiffs have the burden of identifying a “specific test, requirement, or practice” within the
pay plan that has an adverse impact on older workers.” It is not enough to allege disparate impact. The
employee is responsible for “isolating and identifying the specific employment practices that are allegedly
responsible for any observed statistic disparities.” Petitioners have not done this. Even if they had, the
city’s stated reason for raising the salaries of junior officers was to meet the competition of the
marketplace. The city’s approach was reasonable. The reasonableness test enunciated in this case is a
diminished burden of proof as compared to the tougher “business necessity” test required in other
disparate impact cases, where the employer is required to prove it has chosen the least onerous approach
to the problem it seeks to solve.

D. The executive exemption allows the mandatory retirement at 65 of employees who have
been in a bona fide executive or policy-making position for at least two years prior to the
retirement date, and who, upon retirement will be entitled to benefits of at least $44,000 annually.

E. Section 623(j) allows state and local governments to set mandatory retirement ages for
firefighters and law enforcement officers.

1. If the retirement age law was in effect as of March 3, 1983, the retirement age set
by that law may be enforced.

2. If the retirement age law was enacted after Sept. 30, 1996, then the retirement
age must be at least 55.

F. BFOQ's under the ADEA are defined similarly to those under Title VII—age must be
reasonably necessary to the normal operation of the business.

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1. Hodgson v. Greyhound Lines Inc. upheld a BFOQ based on safety concerns for
the bus line's passengers.

2. Houghton v McDonnell Douglas held that test pilots could not be forced to retire
at 52 years of age.

CASE 9.4 WESTERN AIR LINES V. CRISWELL

472 U.S. 400 (1985)

Background: WA required flight engineers to retire at age 60. Criswell and Starley were pilots who
sought jobs as flight engineers upon reaching 60—WA denied the requests WA argued the BFOQ
defense, arguing the rule was reasonably necessary to the safe operation of the airline. WA offered
evidence of medical problems and susceptibility to heart attacks at ages over 60. Plaintiffs evidence
showed physiological deterioration was due to disease, not age alone. The jury was instructed that a
BFOQ should be found only if the requirement was reasonably necessary to the normal operation or
essence of WA's business. At trial, the jury concluded that the mandatory retirement rule was not a
BFOQ. WA appealed, claiming that the judge did not properly instruct the jury as to the legal guidelines
for defining a BFOQ. WA claimed that the jury instruction was not sufficiently deferential to WA's
legitimate concerns for the safety of its passengers. The Court of Appeals rejected that claim and affirmed
the trial decision. WA appealed to the Supreme Court.

Issue: What must an employer demonstrate to support a claim of BFOQ based on safety consideration?

Decision: BFOQ's are to be narrowly construed under ADEA, as under Title VII. Tamiami Trail held that
legitimate safety concerns made an age limit for drivers a business necessity. The test was an objective
one—are the restrictions reasonably necessary to further the overriding interest in public safety. The
restrictions must be reasonably necessary to the particular business—safety concerns compel the
employer to use age as a proxy for safety-related job qualifications. The employer, relying on safety
concerns for justifying the BFOQ must show either: (1) it had reasonable cause—a factual basis—to
believe that all, or substantially all, persons over the qualification age would be unable to perform the job
duties involved; or (2) that age was a legitimate proxy for the safety-related qualifications because it was
impossible, or highly impracticable, to deal with older employees on an individualized basis. Plaintiffs
have shown that risk of deterioration is not due to age—age is not a proxy for that qualification. The FAA
and other airlines recognize that the qualifications for a flight engineer position are less rigorous than
those for a pilot. FAA regulations require retirement of pilots at 60, but no regulation establishes a
mandatory retirement age for flight engineers. The BFOQ "reasonable necessity" standard doesn't ignore
the public interest in safety. The jury instruction defined the essence of WA's business as the safe
transportation of passengers.

G. The ADEA does not prohibit voluntary retirement—if it is truly voluntary.

1. The 1990 OWBPA amendments to the ADEA inserted provisions allowing early
retirement incentives and waivers.

2. Waivers must strictly comply with the requirements of the act: additional
compensation was given for the waiver, they must be written and specifically refer to
rights under the ADEA, and only waive rights arising prior to the waiver.

a) The employee must be advised, in writing, to consult an attorney, and

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must be given at least 21 days before deciding whether to execute the waiver.

b) The employee also must be allowed to revoke the waiver up to 7 days

after signing it.

c) If the waiver is part of a termination incentive program, the employer

must give the employee 45 days to consider the waiver.

d) If the early retirement and waiver is offered to a class of employees, the

employer must provide employees with the required information. The employer
must also pay 80% of the cost for the employee to consult an attorney about the
waiver.

e) For any waiver involving a claim that is already before the EEOC or a
court, employees must be given "reasonable time" to consider the waiver. (p.
255)

f) In any suit involving a waiver of ADEA rights, the burden of proving the
waiver complies with ADEA requirements is on person asserting the waiver is
valid.

g) Any waiver doesn't affect an employee's right to contact the EEOC or the
EEOC's right to pursue any claim.

CASE 9.5 OUBRE V ENTERGY OPERATORS, INC.

522 U.S. 422 (1998)

Background: Oubre [O] signed a release of claims against Entergy [E] in return for severance pay; the
release did not comply with the requirements of the ADEA. After receiving the last installment of the
severance pay, O filed suit under the ADEA; E claimed that O's retention of the severance pay acted as a
ratification of the release and barred O's suit. E's claims are based on general contract law and on
equitable estoppel—the retention of the severance benefit acts to ratify the release.

Issue: Does retention of money paid in exchange for an ADEA waiver act as a bar to a suit, if the waiver
was in violation the OWBPA?

Decision: No. The ADEA, as amended by the OWBPA, allows waivers if they are voluntary and
knowing—but in order to be considered voluntary and knowing, they must meet the requirements set out
in the act. The statute is clear—an employee may not waive an ADEA claim unless the waiver or release
satisfies the OWBPA requirements. The OWBPA requirements are separate and apart from contract law -
- and they foreclose E's defenses based on general contract law. O's cause of action is under the ADEA,
and a release can only affect an ADEA claim if it complies with the OWBPA requirements. Here the
release signed by O was invalid and can not bar her ADEA claim regardless of the contractual validity of
the release. Because the ADEA and OWBPA govern the release of ADEA claims, E cannot invoke O's
failure to tender back as an excuse for E's failure to comply with the statutory requirements.

ANSWER TO CASE QUESTIONS

OUBRE V ENTERGY OPERATORS, INC.
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522 U.S. 422 (1998)

1. The waiver signed by Oubre did not make specific reference to ADEA claims; she was not given
sufficient time to consider signing it; and she was not given the required seven day period to change her
mind after signing it.

2. Entergy does not argue that the waiver complies with the ADEA; instead, it argues that Oubre's
retention of the severance pay she received for signing the waiver operated to ratify the release (according
to traditional contract law) and precludes her from suing.

3. No, the court says that Oubre is not required to return the severance pay she received before
suing. The release was improper under the ADEA, so it did not operate to waive her claims; retaining the
severance pay in no way affects the waiver's lack of validity under the ADEA. Further, requiring return of
the money could provide incentive for unscrupulous employers to knowingly violate the OWPBA,
predicated on the hope that the employee would not have the money available to pay back, by the time the
violation is discovered, thus validating the illegal waiver, by default.

Note to professor: If an employee is successful in winning a claim, the defendant may be able to offset
damages by the amount of money it has already paid, under the theory of unjust enrichment.

ANSWER TO ETHICAL DILEMMA

The student’s response should contain the recognition that the ADEA prohibits discrimination based on
age, but that the employer needs only a reasonable factor other than age, to defend itself.

This is an opportunity for the students to explore whether an employee’s personal life situation should be
considered when making layoff decisions. Also, is it ethical to base the decision on which employee may
be better situated to bring a lawsuit, if that employee is chosen for layoff. It is likely that the older worker
with a disabled husband would be able to bring a case based on age discrimination or disability
discrimination, if she were the one let go.

The company should consider objective factors, such as which employee has a better capacity to generate
income for the firm, as compared the salary earned; which employee is more easily replaced when the
economy recovers; the value of the institutional knowledge that will be lost, depending on which
employee is let go; or simply draw a name out of a hat.

3. Procedures under the ADEA

a) The EEOC enforces the ADEA, but the Act also allows individual suits.

b) An individual must file a written complaint with the EEOC, and with the
state or local EEO, if one exists; the complaints may be filed simultaneously. (p.
258)

c) The complaint must be filed the EEOC within 180 days of the alleged
violation, if no state or local agency exists.

d) If a state or local agency exists, the complaint must be filed with the
EEOC within 30 days of termination of state or local proceedings, and not later
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than 300 days from the alleged violation.

e) After filing with the EEOC and state or local agency, the individual must
wait 60 days before filing suit in federal court.

f) If the EEOC terminates proceedings, the complainant has ninety days to

file suit from receiving the right to sue notice from the EEOC.

g) Astoria Federal Savings & Loan v. Solimino held that an individual

could file suit even if the state or local agency finds that the individual was not a
victim of age discrimination.

h) The ADEA provides for a jury trial.

i) The individual's right to sue and any state agency proceedings terminate
upon the EEOC filing suit.

H. After-acquired evidence* does not preclude the plaintiff's right to sue, but does go to the
issue of what remedies are available, according to McKennon v. Nashville Banner Publishing. (p.
259)

*After –acquired evidence is evidence discovered by an employer after having taken allegedly
discriminator action against an employee that the employer attempts to use to justify the action
already taken.

I. Arbitration of ADEA claims was required in Gilmer; agreements to arbitrate employment

disputes, knowingly and voluntarily signed by employees, will be enforced by the courts. (p. 259)

J. Suits by federal employees under the ADEA may be filed after 30 days from filing a
complaint with the EEOC; the complaint must be filed with the EEOC within 180 days of
the alleged violation. (p. 259)

K. The EEOC may file suit under the ADEA

1. The EEOC must attempt conciliation before filing suit; there is no time limit for
conciliation efforts. (p. 260)

2. The federal courts are split on the question of whether there is a specific time
limitation within which the EEOC must file suit. (p. 260)

3. Remedies under the ADEA are similar to those under the Equal Pay Act.
However, liquidated damages, equal to the back pay owed, may only be awarded when
the court finds the employer acted willfully; Thurston defined "willfully" as when the
employer either knew or showed reckless disregard for whether its conduct was
prohibited by the ADEA.

4. Legal fees and injunctive relief are also available. The EEOC cannot recover
liquidated damages in suits it brings under the ADEA. Back pay and liquidated damages
recovered under the ADEA are subject to federal income taxation.

5. Note to professor: Unlike Title VII, there is no provision for compensatory and
punitive damages under the ADEA.
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PROBLEMS

QUESTIONS

1. Employers may offer supplemental pension and medical benefits as an incentive for early
retirement. Employers may require that employees selecting early retirement execute a waiver if the
waiver complies with the ADEA requirements -- the employee is given additional consideration for the
waiver, it is in writing, specifically refers to rights under the ADEA, contains the required information
about eligibility for the program and those employees by job title in the organizational unit not eligible
(see the Raczak case), and advises the employee to consult with an attorney.

2. An employer may establish that age was a BFOQ for a particular position, based on the "business
necessity" test similar to that used under Title VII; that is, the same and efficient operation of the
employer's business requires that employees not be older than the specified age. Other defenses under the
ADEA include that the action was due to a factor other than age, the bona-fide executive exemption and
the police or firefighter retirement exception, the bona-fide seniority or benefit plan exception and the
exception for employers operating abroad where actions required by the local law (the law of the country
where the workplace is located) conflict with the ADEA.

3. Layoffs must be made across the board, without regard to ages. Early retirement packages may be
offered, if they are truly voluntary. Any waivers of ADEA claims must meet the OWBPA guidelines.

4. Mandatory retirement may be instituted under (1) the executive exemption that allows the
mandatory retirement at age 65 of employees who have been in a bona fide executive or policy-making
position for at least two years prior to the retirement date, and who, upon retirement will be entitled to
benefits of at least $44,000 annually, (2) reasonably necessary to the normal operation of the business –
this usually involves public safety issues. (p. 252 -253)

5. A plaintiff must demonstrate a specific policy or practice that has resulted in a disparate impact
on a group of employees, due to their age AND that their ages are over 40 years old. An employer has a
defense if it can show that it has a reasonable basis for its action.

CASE PROBLEMS

6. The workers must identify a specific criterion that was used as having a disparate impact, and may not
just rely on the statistical outcome of the overall decision. The company may assert an affirmative defense
by showing it had a reasonableness factor other than age, however the employer bears the burden of proof
when asserting an affirmative defense.

7. Under 29 U.S.C. §632(j)(2), any hiring or retirement decision by a law enforcement agency "pursuant
to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter" is
exempt from the ADEA. In this case, the plan was exempt.

8. There response to this question is predicated on a case that is accessible through a general internet
search or through a Lexis/Nexis © search. Content provided in this chapter does not provide the student
with sufficient information to make a reasoned argument. The professor is encouraged to engage in
independent research, if the professor wishes to use this question.

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9. He has shown that (1) he belonged to the protected class, (2) that he applied and was qualified for
the position of Postmaster and could reasonably expect selection under the post office's ongoing
competitive promotion system, (3) that he was not appointed despite his qualifications, and (4) that the
position was ultimately filled by an employee who was younger than plaintiff. The employer has a
defense if it can show that it had a non-discriminatory reason for its action. Even if age was “a motivating
factor” as long as it was not “the controlling motivating factor,” the employer will win.

10. Note to professor, this question is predicated on a case that is not available through an internet
search or a Lexis/Nexis © search. The general test is that if the employer has a reasonableness factor
other than discrimination, the employer may assert this as an affirmative defense. In this case, it appears
that fiscal responsibility is a reasonable factor.

11. York and Lindsey established a prima facie case of age discrimination -- younger waitresses were
not terminated for conduct that was the purported reason for terminating York; Lindsey was apparently
qualified to work as a dancer and there was some evidence that she was refused the job because of her
age. The employer's decision was based on subjective criteria -- appearance and "beauty"; the court held
that Lindsey was not required to prove that she met such subjective criteria to state a prima facie case if
she had established that she met the objective qualifications. Subjective criteria could easily be a cover
for discrimination, and both Lindsey and York had established evidence to raise a prima facie case of age
discrimination here.

12. The court held that the rule retiring pilots at 60 was a BFOQ under the ADEA. The FAA
regulation was sufficient to justify the retirement age as a BFOQ, because there was no substantial
difference between commercial pilot positions and the corporate pilot jobs involved here.

13. The court dismissed Parkinson's claims because Cordmaker had established a legitimate business
reason for its actions -- financial difficulties and business downturn. To establish a claim of retaliation,
the plaintiff has to show that he was engaged in activity protected under the ADEA, that the employer
was aware of such activity, that the plaintiff was subjected to some adverse employment action, and that
there was a connection between the adverse action and the protected activity. Parkinson failed to show
that he suffered any adverse employment action as a result of his threat to sue. The court felt that the loss
of use of company telephones and offices after termination did not entail any loss of status, diminution of
authority or clouding of responsibilities. The employer had not attempted to blacklist Parkinson or to take
steps to injure his reputation in a way to preclude future employment prospects.

14. The court of appeals held that the plaintiff had pled a prima facie case of age discrimination.
“Analyzing Jones' claims under the traditional McDonnell Douglas framework, the district court
concluded that Jones had established a prima facie case of age discrimination. The court determined that
Jones suffered an adverse employment action because her transfer resulted in an immediate reduction in
her vacation pay, retirement benefits, and the prestige of her position. Proceeding to the next step of the
McDonnell Douglas analysis, the district court concluded that OKC met its burden of offering legitimate,
nondiscriminatory reasons for its actions: (1) Porter decided to create a new deputy superintendent
position in a revenue-neutral manner; and (2) Jones' position was eliminated to fund the new position. The
court held that this evidence was sufficient to shift the burden back to Jones to demonstrate that OKC's
reasons for her reassignment were pretextual.” Furthermore, the judges stated with approval, “In
response, Jones noted that funding for her previous position stayed on the books for the 2007-2008 fiscal
year, and staff in her former department continued working in that department before and after the
position of Executive Director of Teaching and Learning was created. Moreover, Jones stressed the
similarities between her previous position and the new position created just after her demotion. She also
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Cihon/Castagnera, Employment & Labor Law, 7e Ch 9 Instructor’s Manual 12

stated under oath that fellow OKC directors, including Brown, made age-related comments regarding her
retirement plans and that these comments occurred outside of the context of a normal course of
conversation. Viewing the evidence in the light most favorable to Jones, the district court determined that
a reasonable factfinder could conclude that OKC's proffered reasons for Jones' reassignment were
inconsistent or unworthy of belief.”

15. The court held that it was not clear that Woythal was fired -- Tex-Tenn claimed that he had quit
after being told to "shape up or ship out." Tex-Tenn also argued that Woythal's negative attitude and lack
of interest in the company's future were sufficient reasons for terminating him. The court held that Tex-
Tenn established legitimate non-discriminatory reasons for the termination (assuming he was terminated),
and Woythal had not shown that those reasons were a pretext for age discrimination. The younger
engineer hired to replace Woythal had originally been hired to be his assistant, and replaced him only
after Woythal ended his employment.

HYPOTHETHICAL SCENARIOS

16. He can show a prima facie case: 1) he is in a protected class; 2) he was qualified for the job; 3) he
was not given the job; and 4) the job was given to someone younger.

17. According to the principle set out in University of Tennessee v. Elliot, a state administrative
agency decision should not preclude a suit in federal court based on substantially the same facts.
However, in the actual case here, the plaintiff sought judicial review of the denial of unemployment
benefits; the state court upheld the denial of benefits, and the court held that it was precluded by the "full
faith and credit" doctrine, set out in the Kremer case, from considering her claim. The court held that, in
order to establish a claim of constructive discharge, the plaintiff must show that the employer made her
working conditions "so intolerable" that she would resign. The court held that the job change here was
not a substantial deviation from her existing employment, so there was not a substantial and materially
disadvantageous change to justify Rotert's resignation.

18. The City can prevail if it can show a business necessity such as the safe and efficient operation of
the Police Dept., or public safety for the age restrictions. Additionally, Under 29 U.S.C. §632(j)(2), any
hiring or retirement decision by a law enforcement agency "pursuant to a bona fide hiring or retirement
plan that is not a subterfuge to evade the purposes of this chapter" is exempt from the ADEA.

19. This case is based on the recent Supreme Court ruling Kentucky Retirement Systems v. EEOC, 06-
1037, June 19 2008. The Court said that the Plan does not violate the ADEA, stating "where an employer
adopts a pension plan that includes age as a factor, and that employer then treats employees differently
based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come
forward with sufficient evidence to show that the differential treatment was `actually motivated' by age,
not pension status."

20. Phillips would have to show that she was in a protected class, was qualified for the job, did not
get the job, and the job was given to someone younger. Since the hypothetical does not tell us whether or
not she was qualified for the job, we do not know if she can prove her prima facie case. Assuming she
could, Watkins Co. would need to show that even if age was “a factor” in the decision, it was not “the
factor” in the decision. Mixed motive cases do not prevail in ADEA claims, as they do in Title VII cases.

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publicly accessible website, in whole or in part.