Tag Archives: Age Discrimination in Employment ACT

Supreme Court Rules ADEA Extends to Small Government Employers

Contributed by Carlos Arévalo, November 6, 2018

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Black and white gavel

On Tuesday November 6th, slightly over five weeks after hearing oral arguments, the Supreme Court, by an 8-0 vote, ruled that small government units are covered under the Age Discrimination in Employment Act (ADEA) regardless of their size.  In so doing, the Supreme Court resolved a circuit court split between the 9th Circuit and the 6th, 7th, 8th and 10th Circuits, where the latter courts ruled that the ADEA’s requirement of at least 20 employees for coverage of private-sector employers also applied to state and local governments.

In Guido v. Mount Lemmon Fire District, the plaintiffs worked for a small fire protection district in Arizona. When its two oldest employees were laid off to offset fiscal challenges, they sued alleging that their termination violated the ADEA. The District Court dismissed their claim because their employer did not meet the 20 employee threshold. The Ninth Circuit, however, reversed and the case made its way to the Supreme Court.

Writing for the Supreme Court, Justice Ruth Bader Ginsburg examined a series of amendments affecting both Title VII and the ADEA. Specifically, Justice Ginsburg noted that as originally enacted both laws imposed liability only on private sector employers defined to include a person “engaged in industry affecting commerce whose employees met a numerical threshold.”  In 1972, Title VII was amended to expand its coverage by defining “person” to include “governments, governmental agencies [and] political subdivisions” if they had fifteen or more employees.  Then, in 1974, the ADEA was also amended.  However, unlike Title VII’s 1972 amendments, for the ADEA Congress specifically added “a state or political subdivision of a State” to the definition of “employer” without qualifying it with an employee numerical threshold. Justice Ginsburg found that the use of the phrase “also means” as it related to the definition of employer was “additive” rather than “clarifying.” Accordingly, this meant that for the ADEA Congress actually created a separate category of employer.

In the decision, the Court acknowledged that the ADEA was now given a broader reach than Title VII, but that this disparity was a “consequence of the different language Congress chose to employ.”  The Court also dismissed warnings about the impact on small government services noting that for 30 years the EEOC has consistently interpreted the ADEA to cover government employers of any size and that a majority of state statutes prohibit age discrimination by local governments of any size.

The Supreme Court’s first decision of this term impacts small government employers like Mount Lemmon Fire District in that they will no longer be able to escape liability under the ADEA based on the numerical threshold. Newly minted Justice Brett Kavanaugh did not take part in the decision because arguments took place shortly before his confirmation.

 

U.S. District Court for the Eastern District of California Holds that Job Applicants May Bring Disparate Impact Claims under ADEA

Contributed by Allison Sues, February 23, 2017

On February 17, 2017, the United States District Court for the Eastern District of California held that job applicants could proceed with their disparate impact claim brought under the Age Discrimination in Employment Act (ADEA).

68565758 - book with chapter age discrimination and a gavel.In Rabin v. Pricewaterhouse Coopers LLP, plaintiffs filed a putative class action alleging that the global accounting and auditing firm used hiring practices and policies for entry-level positions that gave preference to younger applicants and resulted in the disproportionate employment of younger employees. The complaint alleged that these hiring practices include recruiting through universities and maintaining a mandatory retirement policy that requires partners of the firm to retire by age 60. The complaint also alleged that the firm’s hiring practices focused on attracting younger workers. The complaint provided examples such as the firm’s employment opportunity promotion materials, which featured only pictures of younger employees, stated that the majority of their workforce is made up of millennials, and described perks geared towards younger employees, such as student loan repayment assistance. The complaint alleges that the result of these hiring practices and policies is a disproportionately young workforce, with the average age of firm employees being 27 years old.

While it is established law that the ADEA allows employees to bring both disparate treatment and disparate impact claims, the firm argued in its motion for judgment on the pleadings that the ADEA does not allow job applicants – as opposed to employees – to bring such claims.  In its motion, the firm relied on the Eleventh Circuit’s 2016 decision in Villareal v. R.J. Reynolds Tabacco Co., which analyzed the language of section 4(a)(2) of the ADEA in determining that the statute does not authorize disparate impact claims by non-employees.

The Eastern District of California in Rabin declined to follow this eleventh circuit precedent and instead held that job applicants may bring disparate impact claims under the ADEA. In a thorough opinion, the court reasoned that the ADEA’s statutory language and legislative history, as well as the Supreme Court precedent, supported the holding that job applicants may bring disparate impact claims. The court also deferred to the Equal Employment Opportunity Commission (EEOC)’s current age discrimination regulation, which states that “[a]ny employment practice that adversely affects individuals within the protected age group on the basis of older age is discriminatory unless the practice is justified by a reasonable factor other than age.”  29 C.F.R. § 1625.7(c) (emphasis added).

Employers should be careful that their hiring practices and policies do not tend to favor younger workers. The following is a non-exhaustive list of practices that should be re-evaluated to ensure that job postings and hiring practices do not run afoul of the ADEA:

  • Using such phrases as “Recent Graduates Wanted” or “Looking for High School Graduates” in job postings
  • Advertising a youthful workforce in recruiting materials
  • Exclusively recruiting through university programs
  • Making any reference to “millennials” in any recruiting or job posting documents
  • Promoting employee perks geared only to attract younger employees, such as student loan repayment assistance or daycare options for young children