Originally presented during a breakout session on
age discrimination for the Pennsylvania Bar Association's
"Elder Law Institute" seminar on July 25, 2002

"You can't teach an old dog new tricks," "old as dirt", and "you're no spring chicken". All three sayings may conjure up thoughts of Perry Mason-like trials from your elder law clients, wherein the proverbial "smoking gun" is followed by a multi-million dollar jury verdict and a really, really comfortable retirement. However, not every "smoking gun" is really a "smoking gun", and not every objectionable statement made by a co-worker constitutes age discrimination. As lawyers who do not regularly practice in the area of employment discrimination, it may be difficult for you to discern an offensive statement from an actionable one, and morally reprehensive conduct from age discrimination. Admittedly, a complete analysis of age discrimination law⁽¹⁾ would comprise volumes. This article, however, will provide you with some assistance in analyzing potential age discrimination claims by discussing "hot" topics and by answering the following questions: (I) how important is it to identify the "decisionmaker?", (II) are employers really safe as long as they hire or promote someone over the age of forty?, (III) what is the difference between lawful and unlawful disparate treatment?, (IV) are stray remarks age discrimination?, and (V) when can a victim of age discrimination accept severance and still sue the company?

I. The Importance Of Identifying The "Decisionmaker"

In order to prevail on an age discrimination lawsuit, it is critical to promptly identify the "decisionmaker," i.e., the person (or persons) who made the decision to take the adverse employment action against your client. Once the decisionmaker is identified, you must then look for evidence that the decisionmaker harbored a bias or prejudice against employees over the age of forty. For example, what if your client tells you that he or she was passed over for a promotion.⁽²⁾ The first question you need to ask your client is "who made the decision not to promote you?" Once the decisionmaker is identified, you must then ask "what makes you think that person passed you over for a promotion because of your age?" This is important because in order to win an age discrimination lawsuit, the jury has to conclude that the specific decisionmaker discriminated against your client on the basis of his or her age. It is not enough that co-workers other than the decisionmaker disliked your client because he is older than them, and it is not enough that your client happens to be over the age of forty and just happened to be passed over for a promotion. There are some pundits who believe that O.J. Simpson won his murder trial simply because the defense put Los Angeles Detective Mark Fuhrman on trial and painted him as the "bad guy." If you don't have a Mark Fuhrman, or several Mark Fuhrmans, in your age discrimination case, you are likely to lose because a jury needs to see and hear from the "bad guy" who made the adverse employment decision regarding your client. "Bad guy" in the O.J. Simpson case meant planting evidence to frame the defendant. In age discrimination cases, "bad guy" means disliking employees over the age of forty because they are over the age of forty. Although at first glance this may seem like common-sense, many plaintiff employment attorneys later find themselves faced with a daunting motion for summary judgment because they missed this critical step.

Caution: if you learn that there were many decisionmakers, it may make for a harder age discrimination case. For example, if you learn that five employees were involved in the decision not to promote your client (your client's immediate supervisor and the supervisor's supervisor in Pennsylvania, and a recruiter and two regional vice presidents from the company's home office in California), the jury will expect you to introduce evidence that each of the five decisionmakers passed your client over for a promotion because of his or her age. Because you have to tie a discriminatory motive to every decisionmaker, the more decisionmakers that were involved, the more likely it is that you will have to prove company-wide age discrimination to prevail. For obvious reasons, proving company-wide discrimination is much more difficult than proving that the sole decisionmaker, your client's immediate supervisor, disliked your client because your client is over the age of forty. Moreover, the more decisionmakers that were involved, the more likely it is that the decision was actually based on legitimate business reasons rather than age discrimination under the theory that, in all likelihood, not every employee would allow a discriminatory motive to prevail.

II. The Employer's Defense: Replacing Your Client With Someone Forty Years Of Age Or Older.

Another common mistake plaintiff's employment lawyers make is failing to take a critical look at the person who replaced your client. Replacement in our example means the person who actually got the promotion. A prima facie case of age discrimination requires the plaintiff-employee to prove that he or she: (1) is a member of the "protected class", i.e., over the age of forty; (2) was qualified for the position; (3) suffered an adverse employment decision; and (4) was replaced by a person sufficiently younger so as to permit an inference of age discrimination. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001) (citing Connors v. Chrysler Fin. Corp., 160 F.3d 971, 973 n.1 (3d Cir. 1998)); Narin v. Lower Merion School Dist., 206 F.3d 323, 331 (3d Cir. 2000). Note that the fourth prong does require that your client prove that he or she was replaced by someone under the age of forty, but rather requires proof that the replacement was a person "sufficiently younger" so as to permit an inference of age discrimination. To that end, in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the United States Supreme Court previously held that an age discrimination plaintiff need not prove that he or she was replaced by someone outside the protected age group (under forty). There, an employee fifty-six years of age was replaced by an employee who was forty. The Supreme Court concluded that the key inquiry is not whether the employee was replaced by a person outside the protected class (under forty), but whether the employee was replaced because of his or her age. In the Court's view, because the ADEA prohibits discrimination on the basis of an individual's age, and not protected class membership, the fact that the replacement is "substantially younger" is a far more reliable indicator of age discrimination. Id. at 313. Therefore, an employer's defense that it replaced your client with someone forty years of age or older may not be foolproof.

Following the O'Connor case, the Equal Employment Opportunity Commission ("EEOC"), the administrative agency charged with enforcing the ADEA, issued an enforcement guidance regarding the application of O'Connor to various hypothetical fact patterns. EEOC Notice No. 915.002 (September 18, 1996). Although the EEOC acknowledges that the phrase "substantially younger" is to be interpreted on a case by case basis, in its guidance, the EEOC interprets the phrase broadly. To that end, the EEOC points out that the Supreme Court in O'Connor offered the example of a sixty-eight year old replaced by a sixty-five year old and suggested that such facts might amount to "creating a prima facie case on the very basis of thin evidence." Id., Question 4. The Third Circuit Court of Appeals subsequently held that replacements who were eight and sixteen years of age younger than the plaintiff were "substantially younger", and also opined that, based on pre-O'Connor decisions, perhaps an age difference of five years may be enough, but that one year would not. Showalter v. University of Pittsburgh Med. Ctr., 190 F.3d 231 (3d Cir. 1999); also see Hartley v. Wisconsin Bell, Inc., 124 F.3d 887 (7th Cir. 1997) (ten years difference in age between the plaintiff and the replacement is presumptively "substantially younger"). Therefore, to determine whether your client has a prima facie case of age discrimination, promptly identify your client's replacement (or replacements) and make sure that you are comfortable that a judge or reasonable jury is likely to conclude that the replacement is "substantially younger" than your client, even if the replacement is forty years of age or older. Failure to do so may result in a successful motion for summary judgment and a dismissal of your client's case after you have spent countless hours building your case in discovery.

III. Distinguishing Lawful from Unlawful Disparate Treatment.

There are many instances of disparate treatment in the workplace, i.e., situations where employees are treated differently than other employees, but not all instances of disparate treatment are unlawful. A popular and oftentimes successful defense to age discrimination is that the disparate treatment was undertaken for legitimate business reasons. If your client's employer offers a legitimate, non-discriminatory business reason to explain the fact that it treated your client differently than other employees (such as other candidates were more qualified for the promotion), in order to prove that the disparate treatment was nevertheless unlawful, you need to demonstrate that the business reason offered by your client's employer was merely a pretext for age discrimination. In order to do so, you must "point to weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the employer's legitimate non-discriminatory reasons such that "a reasonable factfinder could rationally find them unworthy of credence." Fuentes v. Perskie, 32 F.3d 759, 764-5 (3d Cir. 1994).

A common misconception is that making an adverse employment decision based on an employee's salary violates the ADEA because, as a general rule, older employees are typically more senior and, therefore, earn higher salaries. This issue, however, was settled by the United States Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). After considering conflicting lower court decisions addressing the issue of whether terminating an employee to save salary costs is violative of the ADEA, the Court stated: "We now clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age…. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait [age] actually played a role in that process and had a determinative influence on the outcome…. It is the very essence of age discrimination for an older employee to be fired because the employer believed that productivity and competence declined with old age." Id. at 609-10. Importantly, the Court went on to hold that "[w]hen the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age…." Id. Although the line seems to be a fine one, it is not unlawful for an employer to take an adverse employment action against an employee in order to save salary costs, or to avoid a pension. Id. (holding that although pension status is typically correlated with age, it is nevertheless a lawful motivating factor). But keep in mind: "[age] discrimination may exist when an employer terminates an employee based on a factor such as experience or salary when the employer presupposes a correlation with age and uses that factor as a proxy for age … [but] a decision to terminate an employee solely because of salary or length of service is not age discrimination … age and these other factors are analytically distinct." Slathar v. Sather Trucking Corp., 78 F.3d 415 (8th Cir. 1996) (citing Hazen, 507 U.S. at 611-3).

IV. Stray Remarks as Evidence of Age Discrimination.

"You can't teach an old dog new tricks," "old as dirt", and "you're no spring chicken". Each of the foregoing comments, when uttered in the workplace, may cause distress to your client. However, in order for these comments to give rise to a valid age discrimination case, these remarks cannot be isolated and must be uttered by the decisionmaker with some frequency, and temporally close to the date of the adverse employment decision. Simply put, stray remarks, in and of themselves, are not sufficient to constitute age discrimination. See Duffy, 265 F.3d at 170 (not age discrimination where supervisor stated that the plaintiff was not remembering things as she got older and suggested she look for another job with fewer hours where the supervisor's comments were not made on a constant or even frequent basis); see also Rand v. Mannesmann Rexroth Corp., 2002 U.S. Dist. LEXIS 6405 (E.D. Pa. April 15, 2002) (summary judgment granted for employer where "old man" and "younger guy" comments were made one to three years prior to the plaintiff's termination); Robin v. ESPO Engineering Corp., 200 F.3d 1081 (7th Cir. 2000) (summary judgment for employer despite comments by the company's CEO that the plaintiff was an "old S.O.B." and that the plaintiff was getting "too old", where comments occurred two years before the plaintiff's termination and were made in the context of office banter).

Furthermore, not every adjective used to describe an employee in the protected class (forty years of age or older) demonstrates a bias against older employees. In Blackwell v. Cole Taylor Bank, 152 F.3d 666 (7th Cir. 1998), the Court held that there was no direct evidence of age discrimination where the defendant-employer described its recently laid-off employees, who were over the age of forty, as "not flexible" or "energetic." The Court explained: "I[f] 'flexible' and 'energetic' are to go the way of 'fresh blood' and 'you can't teach an old dog new tricks' as words or sayings purged from the lexicon of personnel management … supervisors will be rendered speechless in evaluating their subordinates." Id. at 671-2; also see Fakete v. Aetna, Inc. 152 F.Supp.2d 722, 733-4 (E.D. Pa. 2001) (unfavorable comments about the stale skills of employees with five years of experience or more was not considered evidence of age discrimination because said comments were "not directly related to age, but instead refer[red] to years of experience which is only tangentially connected to, and certainly not dispositive of, an employees age").

V. Accepting Severance And Still Filing An Age Discrimination Lawsuit.

Prior to 1990, the release of ADEA claims was not governed by statutory law. However, in 1990, Congress amended the ADEA by enacting the Older Workers' Benefit Protection Act ("OWBPA") in order to prevent employers from pressuring their older employees to sign releases of claims upon their departure. Generally, the OWBPA seeks to ensure that age discrimination releases are "knowing and voluntary". 29 U.S.C. §626(f)(1). In order to be "knowing and voluntary", the waiver of age discrimination claims must:

(1) be part of a written agreement that is readily understandable by the employee;
(2) refer specifically to claims under the ADEA;
(3) not encompass future ADEA claims;
(4) be given in exchange for consideration that is over and beyond any benefit to which the employee is already entitled;
(5) provide in writing that the employee is advised to consult with an attorney before signing the waiver; and
(6) give the employee adequate time to consider the waiver before signing it. In the case of an individual termination, the employee must be given twenty-one days to consider the waiver. In the case of an exit-incentive or other employment termination program offered to a group of employees, at least forty-five days must be given. In either case, the employee has seven days after signing in which to revoke the waiver. However, in the case of settlement of court proceedings or settlement with the EEOC, "a reasonable period of time" to consider the waiver is acceptable. Id.

In the landmark decision of Oubre v. Entergy Operations, Inc., 522 U.S. 422 (1998), the United States Supreme Court held that age discrimination claims are not barred by waivers which fail to conform with the foregoing OWBPA requirements. Furthermore, the Court held that an older worker cannot be required to "tender back", i.e., return, the consideration he or she received for signing the invalid waiver as a condition to filing suit under the ADEA. According to the Supreme Court, and the EEOC, a "tender back" requirement would discourage older workers' from filing age discrimination lawsuits because, as retirees, they are likely to have already spent their consideration on living expenses and would not have the extra funds to challenge waivers under the OWBPA. Although the Supreme Court in Oubre did not go so far, the EEOC has taken the position that it is unlawful to include a "tender back" provision in a settlement agreement, waiver, or any other document requiring an older worker to waive an employment discrimination claim. 29 C.F.R. §1625.23.

VI. Conclusion.

The foregoing are just a few "hot" issues that you should pay attention to when considering an age discrimination claim on behalf of your client. As with many areas of employment discrimination law, you should conduct as thorough investigation as possible before filing suit. And, answering the above questions early on in your investigation, and proceeding accordingly, will significantly increase your chances of successfully withstanding an employer's motion for summary judgment. Be mindful of the reality that just because your client has met with morally offensive conduct by his or her employer, that does not necessarily mean that your client has the makings of a winning age discrimination lawsuit. In the long run, your client will thank you for knowing that reality before he or she gets emotionally (and financially) involved in the long and sometimes painful process of litigation.

1. Age discrimination law in Pennsylvania is primarily comprised of the following three statutes: the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA"), the Pennsylvania Human Relations Act, 43 P.S. §951 et seq., and the Older Workers' Benefit Protection Act, 29 U.S.C. §623 et seq. (back to article)

2. An adverse employment action may be any work-related decision that negatively affects your client, e.g., a demotion, suspension, termination, transfer, wage decrease, lower than expected wage increase, or decreased job responsibilities. However, the conduct must be serious enough to materially alter an employee's terms and conditions of employment or to adversely affect the employee's status as an employee. Oral reprimands or harsh words may not meet this test. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). (back to article)

 

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