Age Discrimination Can a clothing store featuring styles designed for the college market lawfully prefer youthful salespersons? May a marketing firm reject older applicants in an effort to bring “new blood” into its workforce? While these questions are not definitively resolved, employers taking such actions might face liability for age discrimination. ADEA Claims The Age Discrimination in Employment Act (ADEA) protects those 40 years and older from employment discrimination based on their age. Disparate treatment and harassment claims may be brought under the ADEA, and a 2005 Supreme Court decision extended ADEA protection to disparate impact claims also. 80 In its 2009 Gross v. FBL decision, the U.S. Supreme Court made it more difficult to win an ADEA disparate treatment claim. 81 Jack Gross had worked for FBL for over 30 years when at age 54 he was reassigned from Claims Administration Director to Coordinator, while his former duties were transferred to a younger worker whom he had supervised. Gross filed an ADEA claim against FBL claiming the demotion violated the ADEA, and he won a jury verdict after showing that his age played a role in FBL’s decision. FBL appealed. The U.S. Supreme Court held that an ADEA disparate treatment claim requires the plaintiff to show that age was not just one factor, but the deciding or “but-for” factor in the employer’s decision. 82 The proposed Protecting Older Workers Against Discrimination Act, which would have reversed Gross, was introduced in Congress but was not enacted. Defenses The employer may defend against an age discrimination claim by showing that the termination was based on a legitimate, nondiscriminatory reason (such as poor performance) or that age is a bona fide occupational qualification (BFOQ). For example, if there is no test available to predict when a commercial airline pilot over 60 years of age might experience a medical emergency that could jeopardize aviation safety, then being under 60 years of age is arguably a BFOQ for that job.83 The ADEA also provides that an employer can defeat an age discrimination claim by demonstrating that a “reasonable factor other than age” (like poor attendance) was the actual reason for terminating or otherwise disfavoring an older worker. In 2008, the U.S. Supreme Court held that an employer using this defense in a disparate impact case carries the burden of proving a “reasonable factor other than age.” 84 Questions 1. Mary, 61 years old, worked as a leasing consultant for a realty company for over two years before she was fired. The primary duty of a leasing consultant is to rent apartments. The company used phone and video evaluations to assess employees’ performance. During her employment, Mary’s scores allegedly were, with one exception, consistently below expectations. Allegedly, she violated company policies by showing an apartment without getting the prospective tenant’s proof of identification, holding an apartment without a deposit, and showing an apartment not to be shown. Mary, who allegedly had been warned and placed on probation, claimed that during the termination meeting, her supervisor made age-related comments, as she had on several prior occasions. Mary sued her former employer for discrimination under the ADEA. Decide. Explain. See Marsh v. Associated Estates Realty Corp. 521 Fed. Appx. 460 (6th Cir. 2013) (unpub’d. op.). 2. The Insurance Company of North America (ICNA) sought to hire a “loss control representative.” The ad called for a B.S. degree, two years of experience, and other qualities. The plaintiff, who had 30 years of loss control experience, applied for the job but was not interviewed. ICNA hired a 28-year-old woman with no loss control experience. The plaintiff sued claiming age discrimination. ICNA said the plaintiff was overqualified. a. Explain both the plaintiff’s and defendant’s arguments. b. Decide the case. Explain. See EEOC v. Insurance Co. of N. Am. , 49 F.3d 1418 (9th Cir. 1995).

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