Age Discrimination in Employment Act (ADEA)

Reorganization, reduction in force (“RIF”), merger of departments – these are only a few reasons which employers give when firing an employee – and which is frequently alleged to be — and found to be a pretext in violation of Title VII, the ADEA or other anti-discrimination laws.

And also setting a performance bar too high to achieve, intending the employee to fail.  

All employment lawyers – both employee and management side – have encountered these scenarios.

age discrimination : Concept image depicting employment ageism and discrimination for people over fifty. Selective focus on the road text. Copy space.

A new Age Discrimination in Employment Act (“ADEA”) case filed by the EEOC illustrates the nature of such an alleged pretext.  The EEOC claims that Blinded Veterans Association (“BVA”), a non-profit Washington, D.C.-based service provider to blind veterans fired two longstanding employees because of their age.   (NB:  Another example of the EEOC targeting organizations “whose charter is to help people” or “who should know better.”  Readers are hopefully familiar with our many such posts, usually involving the ADA).


One 76-year old employee with 34 years tenure was asked repeatedly when he would retire.  When he said that he had no such plans, BVA (according to the EEOC) “announced that it was ‘reclassifying’ certain jobs, including [plaintiff’s], and that he needed to compete for one of the newly-created national field service officer positions if he wanted to remain employed by BVA.  In order to compete for one of the newly created jobs, BVA imposed on Martinez arbitrary and unrealistic requirements.”

A “bar too high to reach,” which led inexorably (and intentionally) to failure, is what this alleged “pretext” might be called, if proved true.

unfair race : You are pushing a flat cube while your competition is pushing spheres marked Them, symbolizing an unfair advantage others have in a race or the game of life, preventing you from success and achiving goals Stock Photo

The second employee, 70 years’ old with 15 years tenure, was asked repeatedly “When are you going to retire?” and “When are you moving to Florida?” 

Refreshing, don’t you think?  At least with the second employee the employer was honest in its age animus — thereby providing the employee direct evidence of age discrimination, without the messy and complicated pretext.


An EEOC attorney said it best:  “Targeting older workers under the pretext of a reorganization doesn’t fool anyone – it’s clearly age discrimination, and clearly unlawful.” 


We have compiled a long list of words or terms used by employers to describe older employees — which the employees have later used in court as direct evidence of age discrimination under the ADEA.

Add another word to the list, which includes “ancient,” “old school,” “set in his ways,” “not a proper fit for the “new environment,” “lacking in energy,” “not being up to date,” “sounds old on the telephone,” “bag of bones,” “not enough runway,” and “a little long in the tooth.”

Meloney Sallie-Dosunmu, a corporate HR director in the Allentown, PA area, reports:

“I was on a conference call one day and heard someone refer to some other colleague’s mistake as ‘senioritis.’


seniors : Portrait of a happy senior man smiling isolated on white Stock Photo

The BBC has just reported that numerous age discriminatory ads appear on the UK government’s Universal Jobmatch website, which is used by millions seeking jobs.

“Recent graduates” are sought in ads by hundreds of employers, such as “My client is recruiting a recent graduate to join their extremely busy team. You should be looking for a career, have good customer service skills and good administration skills including data entry.”

Some ads are bolder and seek “young graduates.”

We would have to agree with the UK lawyers interviewed that such ads would be found discriminatory.  At least in the US, where they would violate the ADEA and state and local laws which forbid age discrimination.

kids : Portrait of young boy thinking his aspirations Stock Photo

Another ad read:  “We are always looking to recruit talented, ambitious young people who may fit well into one of our progressive thinking departments such as media, including social media, TV, press officer or other departments such as office administration.”

A spokesperson for one leisure industry company with a similar ad used “business necessity” language in justifying such an ad, stating that (as paraphrased in the article) “he could see nothing wrong with it because in the leisure industry people needed to be young and fit.”

young people : portrait of large group of young people in summer time Stock Photo

The UK government must get its House in order.


Someone failed to advise a NY legal staffing company about a little thing known as the ADEA – the Age Discrimination In Employment Act.

Apparently it “rejected a 70-year-old attorney when it discovered her age and told her it would never hire her after she questioned if the rejection was because of her age.”  This, according to a new suit filed by the EEOC.

older lawyer : Older business woman sitting at desk reading in a book. Idea for a learning concept in the age.

After the attorney accepted a temporary work project, the company asked for and was told her date of birth, and within 90 minutes she was told her that the offer was withdrawn.  The attorney asked whether this was because of her age, and the company allegedly told her that “she would be placed on a ‘do not use’ list and she need not apply for future work assignments with [the company].”

One EEOC lawyer said that “It is time to send a clear message to employers: Neither age discrimination nor retaliation for making a discrimination complaint will be tolerated.”

A second EEOC lawyer said: “More and more Americans are working past the age of 65, and they have a right to do so free of ageism.”

Age discrimination claims are rising fast these days — the aging of the population ensures that employers who are not familiar with the ADEA will be targeted by an ever more aggressive EEOC.

In any event, as we have said in our prior posts, employers are missing out on a valuable resource — experienced employees — if they seek to eliminate them, legally or illegally.



The Supreme Court in a 2009 decision called Gross changed the well-settled burden of proof used in so-called “mixed motive” cases, by which if an employee showed that discrimination was a “motivating factor” in an adverse employment determination, the employer than had the burden to show that it would have made the same adverse employment determination even if there was no discrimination. The Court, however, ruled that the case only applies to the ADEA, and not to Title VII.

The New Gross But-For Standard

The new “but for” causation standard articulated in Gross is a more difficult test for employees to meet — an employee must now prove that “but for” his age, the employer would not have taken the adverse action. That is, an employee must show that discrimination was not just one “motivating factor” in the employer’s allegedly adverse decision affecting the employee (as it used to be, and still is, under Title VII), but that age must be the reason behind the adverse decision.

The First Attempt in 2009 To Overturn Gross

On June 16, 2010, we wrote a long piece describing how Gross changed the existing law, and noted that lawmakers introduced a bill in Congress in October 2009 to overturn Gross. A Justice Department lawyer testified in support of this bill which would undo the “damage caused by Gross” and put the ADEA back on the same footing as Title VII – that is, it would make it clear that the intent of Congress in passing Title VII and its amendments was to make the Title VII standard of proof apply to the ADEA, and the other anti-discrimination laws, such as the ADA and section 1983.  The bill went nowhere.

The Second Attempt in 2012 To Overturn Gross

Senators from both parties once again introduced the bill a little more than a year ago – Senate Bill 2189, known as the “Protecting Older Workers Against Discrimination Act,” which would have re-established the “mixed motive” analysis for ADEA claims.  The bill went nowhere.  See our April 2012 post.

The Latest Attempt To Overturn Gross

Now, for the third time, The Protecting Older Workers Against Discrimination Act has been revived.  Reintroduced in the U.S. Senate yesterday by Sens. Patrick Leahy, D–Vermont, Tom Harkin, D-Iowa, and Chuck Grassley, R-Iowa, the bill would reverse Gross.

Senator Leahy stated: “The Supreme Court’s divisive holding in Gross has created uncertainty in our civil rights laws, making it incumbent on Congress to clarify our intent and the statutory protections that all hard-working Americans deserve. …  Our bipartisan bill re-establishes Congress’ intent that age discrimination is unlawful, and it makes clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial.”

Once again, we will see.


A number of times (most recently last week) we have written about age discrimination, and the different comments which employers have made in lieu of coming right out and firing an employee and calling them “too old.”

We can now report a new case filed in New Jersey state court in which an employee alleges that she was fired for being too young. She claims to have been referredv to as “a kid,” “the kid,” “the office girl” and “as having no common sense.”

Since the Age Discrimination in Employment Act (“ADEA”) protects only employees who are over 40, the suit was filed under state law, which has no age limit.

“Kid” meet “Methuselah.”


Lets add some new expressions to our ever-growing lexicon of age-related discriminatory remarks.  How about the following: “as old as the woodworks” and “an old penny that keeps coming back.”  That’s what a fired employee claimed she was called repeatedly.


A federal court in Colorado found the other day that a 56-year-old retirement home nursing assistant may proceed to trial with her ADEA claim that she was fired because of her age, because “[g]iven the frequency and targeted nature of the alleged [age-related] remarks, they cannot be classified as ‘stray’ or ‘sporadic.’”    



The Court held that “Although there is no allegation of biased remarks made in the direct context of her termination, plaintiff does allege that remarks about her age were made on a continuous basis during the months immediately preceding her termination and that many of them pertained to her ability to perform her job or contained termination threats.”


A sixty-two year old employee who worked for a steakhouse in Florida was fired for alleged performance reasons.  However, he sued and claimed that he had direct evidence that he was fired because of his age:  his boss referred to him as an “old dinosaur,” and said that she thought that he was “too old to do the job” and that he was “just getting old.” The two higher bosses told his boss that “it was either her or [the employee]” and that “she needed to go younger.”


Although one might think that this was sufficient direct evidence of age discrimination to defeat the employer’s motion for summary judgment, one would be wrong, according to the Court:


“Direct evidence of discrimination is evidence which establishes discriminatory intent without inference or presumption.” “[O]nly the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor constitute direct evidence of discrimination.”  


The Court held that none of these comments constitutes direct age discrimination evidence; they “are not directly related to [his] termination.  Thus, although some of these statements may arguably suggest discriminatory animus, none are blatant remarks from which employment discrimination can be found without the aid of an inference.”


However, the Court did find that these comments, when coupled with the factual dispute raised by the employee that he had cured his performance deficiencies created a circumstantial case of age discrimination which would “permit the inference that the defendants were trying to get rid of [him] due to his age. … [and] permit a fact-finder to conclude that the plaintiff was terminated due to his age.”   


The employee is still required to prove at trial that age was a factor in his firing, but surviving summary judgment was likely his biggest hurdle, and with the comments he claims to have heard or been made aware of a jury may very well find his way.




Age discrimination has explicitly been on the top of the EEOC’s agenda for almost a year, what with an aging workforce and a growing number of age charges filed. Two recent cases are instructive as to the nature of direct evidence of age discrimination and the ways that some employers think that they are gaming the system by using code words, and discouraging older applicants from pursuing positions.


We have said many times that referring to an employee as “lacking energy” or “not being up to date” may be as damning as simply coming out and calling someone old.  In these two cases both happened.

First, the EEOC just announced that it settled an age case with the town of Elkton, Maryland for $235,000 and other relief. The lawsuit alleged that the town fired a 70-year old assistant town administrator/finance director because of his age, with the direct evidence adduced that one town commissioner said that the employee was "in his 60s" and "no young chick," suggesting that he be replaced with a "young person out of college" (which was done).   “No young chick” is  synonymous with “old,” and the town commissioner’s other comments simply and patently underscored that that was exactly what he meant.

Second, the EEOC recently sued Texas Roadhouse restaurant in Massachusetts alleging a nationwide pattern or practice of age discrimination in hiring. The EEOC alleged that the restaurant refused to hire older workers for visible “front of the house” positions, such as servers, hosts, and bartenders.


The evidence put forward was not quite as direct as in the first case, but it was close enough to be damning nevertheless (if proved).  It consists of the restaurant’s emphasis on youth when training managers about hiring employees, with all of the images of employees in its training and employment manuals being of young people. Nationwide, the restaurant told older applicants:

— “there are younger people here who can grow with the company;”

— “you seem older to be applying for this job;”

— “do you think you would fit in?;”

— that it was “a younger set environment;”

— “we are looking for people on the younger side… but you have a lot of experience;” and

— “how do you feel about working with younger people?”

Pick either of these two cases to study and learn to stay away from using such language or any like it, even if you are “just kidding around.” More importantly, adopt a zero-tolerance anti-discrimination policy, and do not consider age when hiring or firing because (1) you may be losing out on a great employee, and (2) you may be sued.



In our last entry we discussed at length the concept of “stray remarks” in ADEA cases in the context of a recent federal appeals court argument in New York. Recall that in that case, Fried v. LVI Services, the employee was fired, and produced evidence that his supervisor told him that “You’re 71-years of age. How do you expect to work? … What if you get hit by a bus?”

The trial court found this to be merely a “stray remark,” and therefore granted summary judgment to the employer.

The EEOC said that it was troubled by the fact that some trial courts, such as this one, ignore or disregard these so-called “stray remarks” as direct evidence of age discrimination. The EEOC argued to the appeals court that these comments should be weighed by the ultimate factfinder in the totality of the circumstances of the case, which should preclude summary judgment.

The appeals court just ruled against the employee, whose position was supported by the EEOC. While the Court stated that these remarks “bear some weight in demonstrating discriminatory bias,” they were not enough to permit a reasonable jury to find age bias “when considered against the overwhelming documentary evidence” of the employer’s stated non-discriminatory reason for firing the employee.

Our take away is the same as we noted earlier: even though courts, such as this one, are showing an increasing willingness to ignore what employers usually contend are merely casual or joking or isolated remarks about an employee’s age, it is still good practice to avoid such remarks at all times, and to avoid code words which may be understood as ageist. And note that this appeals court did not totally disregard these remarks, holding that they “bear some weight in demonstrating discriminatory bias,” which might be a signal that they may be willing to chip away at the “stray remarks” doctrine in the future.