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Total Articles: 21

The Age Discrimination in Employment Act: Looking Back at the Last Fifty Years

This year marks the 50th anniversary of the Age Discrimination in Employment Act (ADEA),[1] which was signed into law by President Lyndon B. Johnson in 1967. Congress created the legislation in an effort to promote the employment of older persons based on their ability rather than age and to prohibit arbitrary age discrimination in employment.[2] During the past fifty years, the ADEA has been amended several times, including in 1978, 1986, 1990 and 1996,[3] thereby expanding the scope of the law and the protection afforded older workers. While the overall effect of the amendments has been to expand the law, court decisions have tightened the requirements for proving a violation, and, according to the Equal Employment Opportunity Commission (EEOC), outdated assumptions about age and work persist as stereotypes and barriers to the employment of older workers.[4] This article looks back at some of the significant changes to the ADEA and legal decisions interpreting the law since its enactment.

Seventh Circuit Holds Distressed County Did Not Violate ADEA When It Terminated Rehired Retirees to Preserve Supplemental Health Insurance Coverage and Avoid Additional Costs

Executive Summary: On July 26, 2017, the United States Court of Appeals for the Seventh Circuit in Carson v. Lake County, Indiana affirmed the district court’s order granting summary judgment to the employer on the plaintiffs’ Age Discrimination in Employment Act (ADEA) and Fourteenth Amendment Equal Protection claims, finding that they were not terminated because of their age, but because the employer needed to preserve supplemental insurance coverage for retirees and avoid incurring additional costs.

EEOC Discusses Age Discrimination Issues at New York Seminar, Commission Meeting

The Equal Employment Opportunity Commission (EEOC) is currently hosting the New York District Technical Assistance Program Seminar (TAPS), which has emphasized federal age discrimination protections in conjunction with the 50th anniversary of the Age Discrimination in Employment Act of 1967 (ADEA). In addition, the EEOC will hold a Commission meeting next week on age discrimination and the challenges it poses for the future.

Licensed Medical Marijuana Caregiver’s Termination For Selling Drugs At Work Was Not Age Discrimination

A federal court in Michigan dismissed the age discrimination claim of a licensed medical marijuana caregiver who was terminated in connection with an investigation into drug activity at work. Henry v. Outback Steakhouse of Fla., LLC, No. 15-cv-10755 (E.D. Mich. April 18, 2017).

Third Circuit Upholds Subgroup Disparate Impact Claims Under the ADEA

The Third Circuit Court of Appeals recently created a circuit split when it disagreed with prior decisions from the Second, Sixth, and Eighth Circuits regarding the Age Discrimination in Employment Act of 1967 (ADEA). In Karlo v. Pittsburgh Glass Works, LLC, No. 15-3435 (January 10, 2017), the Third Circuit held that “subgroup” disparate impact claims are cognizable under the ADEA.

Ninth Circuit Holds Section 1983 First Amendment Retaliation Claim Not Necessarily Precluded By Age Discrimination in Employment Act

On August 5, 2016, the U.S Court of Appeals for the Ninth Circuit held that the Age Discrimination in Employment Act (ADEA) does not preclude a First Amendment retaliation claim under section 1983 of the federal Civil Rights Act. Stilwell v. City of Williams, No. 14-15540, __ F.3d __ (9th Cir. Aug. 5, 2016). The decision is significant because section 1983 may now provide a remedy to a public-sector employee alleging retaliation, based on age discrimination, against a state or local government entity or official. In contrast, no such remedies are available under the ADEA because the U.S. Supreme Court has held that the Eleventh Amendment provides immunity from ADEA claims against state actors. Section 1983 is thus an alternative avenue for a public employee to challenge a public employer’s alleged retaliatory conduct for exercising free speech in the age discrimination context.

Naughty Neonatal Nurse Nixed After Nineteen Years; Hospital Wins Age Discrimination Lawsuit

A veteran neonatal nurse practitioner who was fired after one too many acts of misconduct could not prove age discrimination, a federal appeals court recently confirmed. The case presents healthcare employers with a good reminder that well-documented and well-founded disciplinary action is the key to avoiding liability when you need to take adverse action against an employee who is a member of a protected class.

eLABORate: 11th Circuit Opens ADEA Disparate Impact Claim to Job Applicants, Modifies Burden for Tolling of Statute of Limitations

In Villarreal v. R.J. Reynolds Tobacco Company, (11th Cir. Nov. 30, 2015), the Eleventh Circuit, in a 2-1 decision, allowed a rejected applicant to proceed with a claim of disparate impact employment discrimination under the Age Discrimination in Employment Act (“ADEA”), 29 USC §623(a)(2). The court also modified the threshold for equitable tolling to revive the timeliness of the plaintiff’s claim despite a two-and-a-half year delay in filing the charge of discrimination. The decision on both issues marks a departure from previous case law and puts the Eleventh Circuit in conflict with several other Circuits.

Do Discharges Resulting From a Career Planning Program Amount to Group Termination Under the OWBPA?

In Barnes v. The Hershey Company, No. 3:12-cv-01334, Judge Charles R. Breyer of the U.S. District Court for the Northern District of California granted summary judgment to an employer on the age claims brought by several former employees who had signed waivers of their age discrimination claims when they were discharged. The issue before the court was whether the waivers complied with the Older Workers Benefit Protection Act of 1990 (OWBPA).

Supreme Court Decides Not To Decide Age Bias Circuit Split

This morning, on one of the first days of the 2013-2014 Term, the Supreme Court of the United States—as widely predicted—dismissed the writ of certiorari in an age discrimination case as improvidently granted. After hearing oral arguments in Madigan v. Levin (12-872) on the first day of the term, the Court issued a one-line order in dismissing the case, which had come out of the Seventh Circuit Court of Appeals.

Supreme Court Decides Not To Decide Age Bias Circuit Split

This morning, on one of the first days of the 2013-2014 Term, the Supreme Court of the United States—as widely predicted—dismissed the writ of certiorari in an age discrimination case as improvidently granted. After hearing oral arguments in Madigan v. Levin (12-872) on the first day of the term, the Court issued a one-line order in dismissing the case, which had come out of the Seventh Circuit Court of Appeals.

The Young and the Litigious – Are You at Risk for Youth Discrimination Claims?

Many employers are aware that the federal Age Discrimination in Employment Act (“ADEA”) prohibits discrimination on the basis of age against employees age 40 or over. But can employers be sued for age discrimination by employees under age 40? What about claims by younger workers alleging older workers were treated more favorably? The answers are not always clear.

Employment Law Made Un-Scary: ADEA

Everything you need to know about age discrimination in one post.

EEOC Issues New Age Rule

The EEOC clarifies what is -- and is not -- a reasonable factor other than age

EEOC Issues Final Rule on "Reasonable Factor Other Than Age" Defense to ADEA Claims

Last week, the Equal Employment Opportunity Commission issued its final rule on the "reasonable factor other than age" defense in disparate impact cases under the Age Discrimination in Employment Act (ADEA).

EEOC Approves New Age Bias Regulation

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a draft final regulation that clarifies the Age Discrimination in Employment Act's (ADEA) "reasonable factors other than age" test. The new standard will make it easier for workers to establish disparate impact claims and will put a heavier burden on employers in defending such claims.

'Upsetting the Natural Order': Managing Employees Old Enough to Be Your Parents.

If one looks at the research on older workers -- those who are at or close to retirement age -- one finds what Peter Cappelli, director of Wharton's Center for Human Resources, calls "an incredible amount of discrimination, bigger even than discrimination against race or gender." Older people, he says, often find it difficult to get a job, partly because relatively young supervisors are reluctant to hire and then manage employees who are decades older, even though these employees are the type of worker many employers say they want.

Mandatory Retirement of Law Firm Partners.

In January 2010, the Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against the law firm Kelley Drye and Warren LLP, claiming that its alleged mandatory retirement of partners at age 70 violates the Age Discrimination in Employment Act (“ADEA”).1 This is not the first law firm to face claims of age discrimination regarding partners. In 2007, Winston & Strawn LLP settled a suit challenging various aspects of its alleged “decompression” policy that reduced partners’ pay after age 65.2 The same year, Sidley Austin LLP paid $27.5 million to settle a well-publicized EEOC suit brought on behalf of 32 ex-partners who were “de-equitized” allegedly on the basis of age.3 In a ruling preceding the settlement, Judge Richard Posner of the Seventh Circuit found that the EEOC had alleged facts sufficient to show that the Sidley partners may qualify as “employees” protected by the ADEA, rather than “partners” who would not fall within the Act’s coverage because they are employers rather than “employees.”

Employer May Be Liable for Hiring Done by Independent Contractor.

The Age Discrimination in Employment Act (ADEA) makes it unlawful to discriminate against an individual over the age of 40, and specifically includes a prohibition against failing to hiring someone based on his or her age. The 2d U.S. Circuit Court of Appeals recently pointed out the expansive nature of that prohibition by holding that an employer may be held liable for discrimination by third parties - including an independent contractor who is authorized by the employer to make hiring decisions on its behalf.

High Court Rules in Several Key Cases Affecting Employers.

Today, the U.S. Supreme Court issued a number of important rulings. Two of these cases arise in the labor and employment law arena and are discussed below.

Supreme Court Defers to EEOC in Pleading Case.

For the second consecutive day, the U.S. Supreme Court has issued an important employment law decision. Today, in a 7-2 ruling, the high court held that submitting an "intake questionnaire" and a detailed affidavit to the Equal Employment Opportunity Commission (EEOC) is equivalent to filing a charge for purposes of the exhaustion of administrative remedies requirement under the Age Discrimination in Employment Act (ADEA). According to the majority: "The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces."
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