Academic journal article Journal of Legal, Ethical and Regulatory Issues

Out with the Old; the Termination of the Mixed Motive Case under the ADEA

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Out with the Old; the Termination of the Mixed Motive Case under the ADEA

Article excerpt

INTRODUCTION

The labor force within the United States has been experiencing a trend whereby the average age is drastically increasing. As it currently stands, over 48% of the U.S. workforce is comprised of employees that are at least 40 years of age (The Aging Workforce, 2008). This number is expected to increase to 51% within the next few years (The Aging Workforce, 2008). While an experienced employee brings a wealth of knowledge and valuable experience, there is often a positive correlation with higher wages. Though many businesses capitalize upon the seasoned employee's experience, others find the higher costs overly inhibitive on already financially stressed corporations struggling to meet investor demands. In order to increase net income, a business can either increase revenue and/or decrease costs. As a result, employers, in an effort to minimize costs, have an incentive to reorganize the organizational structure of the business. A common strategy is to eliminate costly positions and to reassign the responsibilities to other positions. As a result, employers may be tempted to target higher wage earners in order to reduce costs.

In order to curve discrimination aimed at seasoned workers, Congress enacted the Age Discrimination in Employment Act (ADEA) to preclude discrimination based upon the employees' age (ADEA, 29 USCA, 621 (a), 2006). The protections permeate through the entire realm of the employment process, beginning in the recruiting phase and extending through promotion and termination decisions (U.S. Equal Employment Opportunity Commission, 2008). According to the Act, an employer is prohibited from failing or refusing to hire or to discharge "any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age" (ADEA, 29 USCA, 623 (a), 2006). Much of this terminology mirrors the language used in other antidiscrimination acts, namely Title VII of the Civil Rights Act (Van Ostrand, 2009). As a result, the two Acts were often construed consistently (Van Ostrand, 2009). This included prohibiting employers from taking into consideration impermissible factors when making an employment decision, such as the employees' age, if at least 40, or the race of the employee.

Over the last four years, however, the U.S. Supreme Court has issued two holdings which have significantly altered the standards by which the employers' actions are scrutinized under the ADEA. In the first holding, Smith v. City of Jackson (2005), the Court, while recognizing the availability of disparate impact claims under the ADEA, expressly permitted employers to escape liability if they base their employment decision upon a reasonable factor other than age. In the second holding, Gross v. Financial (2009), the Court held that the employee must proffer sufficient evidence to satisfy the "but-for test". The but-for test requires the employee to establish that age was a determinant factor leading to the adverse employment decision. This new analysis eliminates the availability of a mixed motive case under the ADEA (Gross, 2009). In other words, the court held that age can be a factor in employment decisions, as long as it is not a determinate factor. As a result of these two holdings, employers have expansive latitude in making employment decisions which adversely affect the protections afforded to older workers.

The purpose of this article is to discuss the viability of the ADEA as a protective mechanism for aging employees after the Gross and Smith holdings. Part II of this article will provide an overview of the ADEA, including the bona fide occupational qualifications (BFOQ) exception which permits employers to discriminate against a protected class, in limited situations. Part III will discuss both the disparate impact and disparate treatment forms of discrimination, as well as discussing the Smith case under the disparate impact section. …

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