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News Items, by Subject

Age discrimination, incl. ADEA

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Seventh Circuit Opines on 'Reasonable Factor Other Than Age' Defense to ADEA Claim Stemming from Benefit Plan Elimination
"[R]etirement-eligible participants who did not retire did not receive distributions.... [They then] filed a lawsuit alleging that its liquidation plan violated the ADEA.... [The Seventh Circuit] ruled that the disbursement of the plan's assets was valid ... because voluntary retirement incentives are permissible under the ADEA. The fact that a different arrangement may have treated retirement-eligible employees who chose not to retire more favorably did not matter." [O'Brien v. Caterpillar Inc., No. 17-2956 (7th Cir. Aug. 20, 2018)] (Littler)
Seventh Circuit: No ADEA Violation When Rehired Retirees Were Terminated to Preserve Supplemental Health Insurance Coverage and Avoid Additional Costs
"The Seventh Circuit's decision ... aptly illustrates the difficulty plaintiffs encounter in ADEA cases with the 'but-for' standard of causation. [The case] also underscores the importance of employers not making or acting on 'stereotypical assumptions' about the capabilities of older employees based on their enrollment in Medicare or a Medicare supplemental insurance plan or pension eligibility or using age as the determining factor in employment decisions." [Carson v. Lake County, Indiana, No. 16-3665 (7th Cir. July 26, 2017)] (Ford & Harrison LLP)
Is Your On-Site Clinic Subject to HIPAA Privacy and Security Rules?
"[D]epending on the services provided by your on-site clinic and the method used for communicating standard transactions, your clinic may be subject to the HIPAA privacy and security rules as a covered health care provider. At a minimum, this means you need a Notice of Privacy Practices, HIPAA policies and procedures and can't share information from the clinic with the company unless an exception applies." (Graydon Head & Ritchey LLP)
[Guidance Overview] Wellness Program Check-Up: EEOC Finally Issues Proposed Rules
"This article traces the tortured history of the enforcement of the ADA against wellness programs and concludes with a discussion of the new EEOC Proposed Rule which provides employers and benefits practitioners with some highly anticipated guidance on how wellness programs might be structured to escape EEOC scrutiny." (Ice Miller LLP)
No ADEA Claim for Medicare-Eligible Retirees Whose Benefits Were Eliminated or Reduced
"When this litigation began, the EEOC's Medicare coordination regulation (which reversed a previous EEOC policy) had just been finalized. It is now well settled that the practice of coordinating Medicare benefits with group health benefits by altering, reducing, or eliminating health benefits when retirees become eligible for Medicare does not violate the ADEA's age discrimination prohibition." [Fulghum v. Embarq Corp., No. 13-3230 (10th Cir. Feb. 24, 2015)] (Thomson Reuters / EBIA)
[Official Guidance] Text of IRS Q&As for the Additional Medicare Tax
58 Q&As, updated June 13, 2014. "On Nov. 26, 2013, the IRS issued final regulations implementing the Additional Medicare Tax as added by the [ACA]. The Additional Medicare Tax applies to wages, railroad retirement (RRTA) compensation, and self-employment income over certain thresholds. Employers are responsible for withholding the tax on wages and RRTA compensation in certain circumstances." (Internal Revenue Service [IRS])
Fourth Circuit Says County's Retirement Plan Violated ADEA by Requiring Age-Based Employee Contributions
"The Plan mandated different contribution rates that escalated explicitly in accordance with employees' ages at the time of their enrollment in the Plan. The Court found no merit in the County's argument that the employee contribution rates lawfully were based on a reasonable factor other than age, such as the 'time value of money.' The Court said that its conclusion is not altered by the County's reliance on the ADEA's 'safe harbor provision' ... The safe harbor provision permits an employer to subsidize early retirement benefits without violating the ADEA. However, the provision does not address employee contribution rates nor does it permit employers to impose contribution rates that increase with the employee's age at the time of plan enrollment." (ERISA Lawyer Blog)
Why ADEA Coverage Begins at Age 40
In a recent informal letter to a person who posed a question, the Equal Employment Opportunity Commission reviewed one aspect of Age Discrimination in Employment Act. Excerpt: "The Supreme Court found that the ADEA only protects older workers against discrimination that disfavors them as compared to younger workers, even when all of the workers are at least 40 years old.... Therefore, the ADEA would not prohibit minimum age requirements even if the minimum age requirement were set at age 40 or above, because the minimum age requirement would benefit the relatively older workers and only harm the relatively younger workers. Answering why this limitation exists requires some explanation of legislative history." (Equal Employment Opportunity Commission)
Baltimore County Pension System Ruled Age-Discriminatory
"A federal judge has ruled that Baltimore County's pension system discriminates against beneficiaries because older workers were required to pay more toward their retirement than younger workers.... In a statement, EEOC regional attorney Debra Lawrence said the county provided no financial justification for the practice." (Baltimore Sun)
[Guidance Overview] EEOC Final Regs on Reasonable Factors Other than Age May Have Broad Impact on Employer Policies/Practices
"In light of these new regulations, employers should anticipate that employment decisions that are alleged to have an adverse impact on older employees will be challenged. Hence, in order to prepare for and rebut the inevitable litigation that is sure to follow, prudence dictates that employers consider the [steps listed in this article] now[.]" (Precept)
EEOC Muddles the Reasonable-Factors-Other-Than-Age Defense to Disparate Impact Age Bias Claims
"Employers should consider how the EEOC and plaintiffs will use the revised regulations to attack employer policies that may be considered to have an adverse impact on older workers. In light of the five relevant 'considerations' identified by the EEOC, if your company is sued for disparate impact age discrimination under the ADEA, you can anticipate that your executives will be questioned by the EEOC and/or private counsel." (Paul Hastings LLP)
[Guidance Overview] Eighth Circuit Court of Appeals Affirms Summary Judgment in Favor of Plan Sponsor in ADEA Case Challenging Target Benefit Plan
In Northwest Airlines, Inc. v. Phillips, the 8th Circuit has rejected a claim of age discrimination by a group of older airline pilots, who challenged the formula used in a target benefit plan created as part of the airline"s bankruptcy proceeding in which benefits under the airline's defined benefit plan were frozen. (
[Guidance Overview] EEOC Issues Rule Amending Its ADEA Regulation
"The amended regulation confirms that (1) the plaintiff bears the burden of 'isolating and identifying the specific employment practice' that allegedly causes any observed statistical disparities, and (2) the employer bears the burdens of production and persuasion to demonstrate the RFOA defense.... The regulation also ... provides a nonexhaustive list of considerations that are relevant in determining whether a practice is based on a reasonable factor other than age." (Morgan Lewis )
New EEOC Regs Ramp Up Burden of Proof on Employer Defenses under ADEA
"While it is too early to predict how courts will apply this regulation, the new rule prompts employers to ask [the questions listed in this article] when implementing a reduction in force or any other employment practice that may have an adverse impact on older workers[.]" (Wilson Sonsini Goodrich & Rosati)
[Guidance Overview] EEOC Clarifies 'Reasonable Factors Other Than Age' Standard
"Although the EEOC purports to agree that Title VII's business necessity defense is inapplicable in an ADEA case -- and that the RFOA defense is less strict than the business necessity defense -- the EEOC's articulation of the above-listed RFOA factors could have the practical effect of requiring employers to meet the more demanding business necessity showing." (Ballard Spahr)
EEOC Issues Final Rule under ADEA
"The rule responds to two Supreme Court decisions in which the Court criticized one part of the Commission's existing ADEA regulations. The Court upheld EEOC's longstanding position that the ADEA prohibits policies and practices that have the effect of harming older individuals more than younger individuals, even if the harm was not intentional. However, it disagreed with the part of the regulations that said if an employee proved in court that an employment practice disproportionately harmed older workers, the employer had to justify it as a 'business necessity.'" (
Do Stronger Age Discrimination Laws Make Social Security Reforms More Effective?
"The evidence indicates that, for older individuals who were 'caught' by the increase in the [Full Retirement Age], benefit claiming reductions and employment increases were sharper in states with stronger age discrimination protections." (University of Michigan Retirement Research Center)
[Guidance Overview] NY High Court Holds Fiduciary Insurance Coverage Doesn't Cover Claims against Employer as Settlor
"A class of participants had sued IBM claiming that amendments IBM made to its pension plan were age discriminatory.... The court held that when IBM had amended the plan, it was acting as a settlor rather than a fiduciary, and therefore the claims related to IBM's amendment of the plan were not covered under the policy." (Haynes)
AARP Attorneys Represent Allstate Agents Alleging Age Discrimination
"The cases arise from Allstate's forced termination of more than 6,200 older employee-agents. Approximately 90 percent of those terminated were over age 40, and their median age was 50. Allstate took several approaches in its job termination efforts." (AARP Foundation)
[Guidance Overview] Longer Wearaway Periods for Older Workers in Pre-PPA Cash Balance Plan Did Not Violate ADEA
"The ADEA is satisfied as long as an employer treats older and younger workers equally with respect to credits to their cash balance accounts, even if such treatment results in longer wearaways for older workers. In other words, to demonstrate age discrimination, workers must show that plan inputs --in this case, the pay and interest credits --are discriminatory, rather than pointing to disparate outputs such as the longer wearaway period." (Wolters Kluwer Law & Business / CCH)
Designing ADEA-Compliant Mandatory Retirement Policies for Executives
"Employers whose succession-planning strategies include mandatory retirements must contend with the federal Age Discrimination in Employment Act (ADEA). While the law generally prohibits age-based employment terminations, mandatory retirement policies may be lawful to the extent they apply to nonemployees (such as directors and partners) or satisfy an exemption for certain top executives and policymakers." (Mercer LLC)
[Guidance Overview] AT&T Settles EEOC Suit over Early Retirement Program
"The EEOC had charged that AT&T, Inc. and a number of its subsidiaries discriminated against a class of retired AT&T workers by denying them the opportunity for reemployment solely because they retired under certain early retirement or enhanced severance programs. This practice violated the Age Discrimination in Employment Act . . . ." (PLANSPONSOR.COM)
NY Town and Fire Departments Settle Age Discrimination in Pensions Charges
"The lawsuit charged that the town and the fire departments refused to let volunteer firefighters over age 62 accrue service credit under their 'Length of Service Award Programs' or 'LOSAPs,' the equivalent of a retirement pension, because of their age . . . ." (PLANSPONSOR.COM)
[Guidance Overview] Denying Employer Health Insurance Contributions to Employees Who Retire After Age 55 Violates ADEA
"Given the similarity of the facts in this case to the Eighth Circuit's prior decision involving an age-55 cliff, the outcome here was predictable. But the decision makes an interesting point regarding lesser evils, i.e., just because an employer could legally terminate employees because of their age does not mean that lesser actions, like age-based distinctions in post-retirement benefits, are permissible." (Thomson Reuters/EBIA)
[Guidance Overview] El Paso Corporation Wins Cash Balance Case; No Age Discrimination or Backloading Provisions Were Violated
"The wear-away provisions of the El Paso Corporation cash balance plan did not violate the benefit accrual requirements of Sec. 4(i) of the Age Discrimination in Employment Act (ADEA), because younger and older employees received credits to their accounts in a nondiscriminatory manner . . . ." (Wolters Kluwer Law & Business / CCH)
Early Retirement Plan with Age-55 Window Violates ADEA, Appeals Court Says
"A bargained pension plan requiring employees to retire on their 55th birthday to receive retiree health incentives was 'facially discriminatory' under [ADEA] . . . . By using age as the sole basis for denying eligibility, the plan failed to satisfy a safe harbor for voluntary retirement incentive plans consistent with the ADEA's purposes." (Mercer LLC)
[Guidance Overview] Tenth Circuit Issues Cash Balance Plan Decision Finding in Favor of Plan Sponsor
"Between the now-unanimous decisions of the Courts of Appeals upholding cash balance plans against ADEA challenges, and the new ERISA provisions explicitly blessing cash balance designs, it is expected that plaintiffs' lawyers will find these cases considerably less attractive." (Littler Mendelson P.C.)
[Guidance Overview] Appellate Court Finds Cash Balance Plan not Age Biased
"A group of participants contended that the wear-away periods that occurred during the transition from a defined benefit pension plan to the cash balance plan violated the ADEA's prohibition on age discrimination and the anti-backloading and notice provisions of ERISA . . . ." (PLANSPONSOR.COM)
[Guidance Overview] Court Agrees Minnesota Department of Corrections Early Retirement Incentive Plan Violates ADEA
"Under the ERIP, an employee who retired at age 55 would get employer contributions for health and dental insurance until age 65, but an employee who retired after age 55 would not. The appellate court agreed with a district court ruling that the early retirement incentives are 'facially discriminatory,' and as such violate the Age Discrimination in Employment Act, and that an early retirement incentive plan cannot condition its benefits based solely on age." (PLANSPONSOR.COM)
[Guidance Overview] 3rd Circuit Affirms AT&T's Victory in Cash Balance Suit
"The [Appeals court] has affirmed a lower court ruling that AT&T did not violate [ERISA and the ADEA] in its cash balance plan." (PLANSPONSOR.COM)
[Guidance Overview] Firm Settles Federal Age Discrimination Lawsuit Over Mandatory Retirement Policy
"The U.S. Equal Employment Opportunity Commission . . . announced that it charged that Asian World of Martial Arts, Inc. fired its controller, Morris Pashko, because of his age, 74, pursuant to a newly implemented retirement policy which mandated that all employees age 67 and over be terminated." (PLANSPONSOR.COM)
[Guidance Overview] Duke Energy Settles Retirement Plan Lawsuit for $30 Million
"The plaintiffs claimed Duke broke federal age-discrimination laws when it converted its defined-benefit pension plan to a cash balance plan in 1997." (The Charlotte Observer)
[Guidance Overview] MN Agency Must Pay for Age Bias in Early Retirement Program
"A federal judge has entered a consent decree requiring the Minnesota Department of Human Services . . . to pay $467,165 to resolve an age discrimination case filed by the U.S. Equal Employment Opportunity Commission . . . ." (PLANSPONSOR.COM)
[Guidance Overview] Court Won't Hit Participants for ERISA Lawyers' Fees
"A federal judge in Colorado has turned aside an employer's demand that its lawyers be paid $1.5 million in fees for litigating a cash balance plan charge that was ultimately decided in the company's favor." (PLANSPONSOR.COM)
EEOC Sues another NY Town for Pension Age Discrimination
"Volunteer fire companies in the Town of Clarence, New York, violated federal law by preventing older firefighters from accruing service credits because of their age . . . ." (PLANSPONSOR.COM)
[Guidance Overview] Another Fire District Settles Pension ADEA Claim
"An EEOC news release said the suit alleged that between 1990 and 2004, the Brentwood Fire District and Brentwood Fire Department prohibited volunteer firefighters over age 62 from accruing credit toward a 'length of service award,' the equivalent of a retirement pension, because of their age." (PLANSPONSOR)
Take This Quiz on Age and the Workplace
Excerpt: "Take the following quiz about age and work to help differentiate between myth and fact." (Los Angeles Newspaper group)
7th Circuit Finds No Age Bias in Cash Balance Plan's Interest Credits
Excerpt: "A cash balance plan was not age-discriminatory, even though participants stopped receiving interest credits on one of the cash balance accounts at age 55, the 7th US Circuit Court of Appeals has ruled (Walker v. Monsanto Pension Plan)." (Mercer LLC)
Monsanto Cash Balance Plan Cleared of Age Discrimination
Excerpt: "A provision in Monsanto Co.'s cash balance pension plan that cut off interest credits once participants reached age 55 did not discriminate against older workers, a federal appellate court has ruled." (
Ledbetter Law Fails To Save El Paso Workers' Cash Balance Plan Suit
Excerpt: "A federal judge has once again thrown out a suit claiming that El Paso Corp. discriminated against workers based on age when it modified a retirement plan, ending a long-running putative class action brought after the natural gas company converted its pension plan to a cash balance system." (
[Guidance Overview] AT&T Cleared in Cash Balance Suit Alleging ERISA and ADEA Violations
Excerpt: "The decision . . . ends a 12-year court fight over allegations the company's operation of the pension program discriminated against older workers and violated ERISA's anti-backloading rule. [The judge] also cleared the communications company of violating U.S. Treasury Department regulations that require 'subsidized early retirement benefits' to be the actuarial equivalent of the subsidized benefit." (
[Guidance Overview] Appeals Court Finds No Age Bias in Early Retirement Enhancement by Plan Sponsor
Excerpt: "A pension plan sponsor did not violate the Age Discrimination in Employment Act by accelerating some laid-off workers' eligibility for full early retirement benefits while paying reduced early retirement benefits to older workers affected by the layoff, the Eighth US Circuit Court of Appeals has ruled (Schultz v. Windstream Communications Inc.). The differential treatment was based on pension status rather than age, the court held, relying on the Supreme Court's 2008 ruling in Kentucky Retirement Systems v. EEOC." (Mercer LLC)
[Guidance Overview] Judge Rules Against Minnesota Corrections Department Early Retirement Incentive Plan
Excerpt: "A federal judge has ruled that an early retirement incentive plan at the state Department of Corrections discriminates against older employees. The U.S. Equal Employment Opportunity Commission on Monday announced the ruling in the age discrimination lawsuit that was filed in September 2008. The case centered on an early retirement plan that rewarded corrections employees who retired at age 55 with employer contributions for health and dental insurance until they turned 65. But under the plan, employees who retired after age 55 did not receive the employer contributions." (Minnesota Public Radio)
[Guidance Overview] EEOC Proposes Rule on Age Discrimination Defense
Excerpt: "The Equal Employment Opportunity Commission (EEOC) has proposed a rule to provide guidance on the meaning of 'reasonable factors other than age' (RFOA) under the Age Discrimination in Employment Act (ADEA). The RFOA defense is one of several ADEA affirmative defenses and is particularly important to employers facing an allegation that a seemingly neutral employment action or policy had a disparate impact on older employees." (Towers Watson)
[Guidance Overview] Independent Contractors Not Protected by ADEA When Terminated
Excerpt: "A company was not in violation of the Age Discrimination in Employment Act (ADEA) when it dismissed an independent contractor and replaced her with a younger employee, the Eighth Circuit Court of Appeals ruled in Ernster v. Luxco, Inc. (No. 09-1200). The issue in the case involved whether Barbara Ernster was an independent contractor or an employee, because the ADEA and the Iowa Civil Rights Act (ICRA) 'protects employees but not independent contractors.'" (Wolters Kluwer)
Supreme Court Declines to Review Cash Balance Age Rulings
Excerpt: "The Supreme Court on Feb. 22 declined to review, and thus let stand, lower-court rulings that a cash balance plan that defined 'normal' retirement age as completion of five years of service is legal. Last year, in a unanimous decision, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago affirmed a lower court's ruling that the cash balance plan established in 2002 by Exelon Corp., Chicago, is legal." (Pensions & Investments)
Increase Predicted for 2010 Workplace Litigation by Report from Seyfarth Shaw
Excerpt: "Six key trends from the report are epitomized by the firm as follows: First, the plaintiffs' bar increased the pace of the Fair Labor Standards Act ('FLSA') collective action and the Employee Retirement Income Security Act ('ERISA') class action filings seeking recovery for unpaid wages and 401(k) losses. As lay-offs increased, displaced workers also filed more age discrimination and Worker Adjustment and Retraining Notification lawsuits. Even more litigation is expected in 2010, as businesses re-tool their operations." (Roy Harmon III via Health Plan Law)
Cash Balance Plan Wins in Eighth Circuit on Opening-Balance and Age-Bias Claims
Excerpt: "No ERISA violation occurred when a pension plan used an 8 percent interest rate to establish opening balances in connection with a 1998 cash balance conversion, the US Eighth Circuit Court of Appeals has ruled. Participants claimed the rate was too high, but the appeals court said the plan was free at that time -- before passage of the Pension Protection Act -- to set opening balances as it wished, as long as already-accrued benefits did not decrease. The court also dismissed participants' age-bias claims, consistent with rulings by five other appeals courts." (Mercer LLC)
After 40 Years, Age Discrimination Still Gets Second-Class Treatment
Excerpt: "Age discrimination is illegal. But when compared with discrimination against racial minorities and women, it is a second-class civil rights issue. The Supreme Court drove its inferiority home again in June of this year, ruling that older workers must show that age was the decisive factor in their firing -- not merely a contributing factor, which can be enough for a race or sex claim. Congress is considering overturning the ruling. It should do so. It is particularly important in the current downturn, with age discrimination complaints soaring. But the problem is larger than any one legal standard." (The New York Times; free registration required)
[Guidance Overview] U.S. District Court Says Cash Balance Plan ADEA Claim Not Time Barred Under Lilly Ledbetter Act (PDF)
2 pages. Excerpt: "In Tomlinson v. El Paso Corporation, a federal court in Colorado applied the Lilly Ledbetter Fair Pay Act to allow an age discrimination claim involving a cash balance plan conversion to proceed, reversing its prior dismissal of the lawsuit. The case involves a company that converted its traditional defined benefit pension plan to a cash balance plan in 1997 with a wearaway provision. Although the court initially dismissed the case for not being timely filed, it found that the subsequently enacted Ledbetter Act required it to reconsider this decision. While this is one court's ruling and is limited to Colorado, it demonstrates the potential reach of the Ledbetter Act beyond payroll practices to pension-related claims." (Buck Consultants)
Court Finds Ledbetter Act Revives Age-Bias Claim Arising from Cash Balance Conversion
Excerpt: "An active pension plan participant's age-bias challenge to a cash balance conversion may be timely, even though filed years after the plan change, a federal court has ruled (Tomlinson v. El Paso Corp.). The suit alleges that a 'wearaway' period after the conversion discriminated against older employees. Last Jan. 21, the court had held that the claim was not filed soon enough after the conversion. Now the court has overturned its own ruling in the wake of the Jan. 29 enactment of the Lilly Ledbetter Fair Pay Act. The new ruling addresses only the timeliness, not the merits, of the claim." (Mercer LLC)
2009 Q&As: EEOC Meeting with ABA Joint Committee on Employee Benefits (PDF)
3 pages; May 6, 2009. Excerpt: "Each year, the Joint Committee on Employee Benefits (JCEB) of the American Bar Association meets with officials of federal agencies in Washington, D.C., to discuss issues of interest to employee benefits practitioners. . . . The question and answer transcripts . . . are based on these informal discussions between private sector representatives of the JCEB and agency officials." (American Bar Association)
[Guidance Overview] EEOC's New Guidance on Discrimination Waivers and Releases
Excerpt: "On July 15, the Equal Employment Opportunity Commission (EEOC) issued a new guidance document concerning discrimination waivers and releases contained in employee severance agreements. The full text of the guidance, titled 'Understanding Waivers of Discrimination Claims in Employee Severance Agreements' (EEOC Guidance), is available online at The EEOC Guidance does not dramatically change the EEOC's detailed regulations concerning age discrimination waivers and releases, which center around the complex requirements imposed under the Older Workers Benefit Protection Act of 1990 (OWBPA). However, the new EEOC Guidance is important in several respects . . . ." (Morgan, Lewis & Bockius LLP)
EEOC Addresses Employment Discrimination Waivers
Excerpt: "New EEOC guidance helps employees and employers understand waivers of employment discrimination claims, which are often part of employee severance plans. The guidance spells out in Q&A format the requirements for valid waivers, including ADEA waivers; provides a checklist to aid employees deciding whether to sign waivers; and contains sample language that may be a useful starting point for employers drafting waiver agreements. The guidance responds to the recent spike in layoffs and the potential for charges of age discrimination." (Mercer LLC)
Puerto Rico Mandatory Retirement for Police Officers; Chronology of Events Leading to Exemption Under ADEA for Mandatory Retirement of Firefighters and Law Enforcement Officers
See items number 3 and 4 on the target page. (Cypen & Cypen)
[Guidance Overview] Recent Rulings Suggest Plaintiffs May Need To Prove Discriminatory Motive To Prevail under ERISA's Rate of Accrual Provision, Section 204(b)(1)(H)(i) (PDF)
Pages 6-7 of 9 pages. Excerpt: "ERISA ? 204(b)(1)(H)(i), 29 U.S.C. ? 1054(b)(1)(H)(i), prohibits the reduction or cessation of the rate of benefit accrual in defined benefit plans 'because of the attainment of any age.' A series of rulings by the Seventh, Third, Second, Sixth and Ninth Circuits rejected claims that, since younger workers had more years to accrue interest credits under cash balance pension formulas, those formulas inherently violated Section 204(b)(1)(H)(i). In so ruling, these courts reached the commonsense conclusion that ERISA did not make unlawful the time value of money." (Proskauer Rose LLP)
[Guidance Overview] Supreme Court Makes It More Difficult for Employees to Prove Age Discrimination Claims (PDF)
Excerpt: "The U.S. Supreme Court held in a 5-4 decision that a plaintiff bringing a disparate treatment claim under the Age Discrimination in Employment Act of 1967 (ADEA) must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., No. 08-441 (June 18, 2009). The Court's adoption of a but-for causation standard is a departure from the burden of persuasion that courts had used when analyzing ADEA claims." (Sutherland)
[Guidance Overview] Supreme Court Makes It Harder to Prove Age Discrimination in Employment Actions
Excerpt: "In a 5-4 decision issued on Thursday, the United States Supreme Court made it much harder for plaintiffs in cases under the Age Discrimination in Employment Act ('ADEA') to prove discrimination. The Court held in Gross v. FBL Financial Servs, Inc., that a plaintiff in an age discrimination case must prove, by a preponderance of the evidence, that age was the 'but for' cause of the challenged adverse employment action." (Nixon Peabody LLP)
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