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Can a younger person in the protected class sue for age discrimination?

No, the U.S. Supreme Court has made clear in General Dynamics v. Cline (2004) that the ADEA does not sanction so-called reverse age discrimination claims. In Cline the Court considered whether a retirement plan that treated older workers in the protected class better than younger workers amounted to age discrimination. The Supreme Court said no, reasoning that "the ADEA was concerned to protect a relatively old worker from discrimination that works to the advantage of the relatively young." The Court concluded: "We see the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop an employer from favoring an older employee over a younger one."

Can young people—even those under 40—sue for age discrimination under state laws?

Most state laws have followed the example of the ADEA and limit protection to those employees who are at least 40 years. However, some state laws do not have an age bar-

Firing someone just because they are getting up in years is against the law. Employers sometimes try to do this anyway, though, to avoid paying retirement and other benefits (iStock).

Firing someone just because they are getting up in years is against the law. Employers sometimes try to do this anyway, though, to avoid paying retirement and other benefits (iStock).

rier. For example, Minnesota's age discrimination law provides protection to any employee over the age of majority (18) who is the victim of age discrimination. Minnesota law "prohibits using a person's age as a basis for a decision if the person is over the age of majority."

My supervisor made comments like "you're too old for the job." Is that evidence of age discrimination?

Yes, it is evidence of age discrimination and could be enough to take a case to the jury. It may not be enough to establish a claim under the ADEA as some courts say that stray comments here and there do not suffice to establish a claim. But, that evidence could be "smoking gun" evidence in other cases. It certainly helps an age discrimination case to have this type of evidence.

Can an employer establish mandatory retirement limits?

Generally, no, an employer cannot establish a mandatory retirement age—at least in the vast majority of professions. However, employers can set a retirement age of 65 for highranking executives provided that those executives receive a certain amount in pension benefits ($44,000). Federal regulations provide that this exemption only applies to employees who are "employed in a bona fide executive or higher policymaking position."

Does it violate the ADEA for an employer to provide a date of birth question on an employment application?

No, federal regulations interpreting and implementing the ADEA provide: "A request on the part of an employer for information such as 'Date of Birth' or 'State Age' on an employ-

LegalSpeak: O'Connor v. Consolidated Coin Caterers, Inc. (1996)

The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to "40 or over" discrimination) when a 40 year-old is replaced by a 39 year-old than when a 56 year-old is replaced by a 40 year-old....

In the age-discrimination context, such an inference cannot be drawn from the replacement of one worker with another worker insignificantly younger. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.

ment application form is not, in itself, a violation of the Act." However, such questions will be "closely scrutinized" to assure that the purpose of the questioning is permissible.

Are mixed-motive claims cognizable under the ADEA as they are under Title VII?

No, the U.S. Supreme Court rejected mixed-motive claims under the ADEA in its recent decision in Gross v. FBL (2009). Writing for the Court, Justice Clarence Thomas reasoned: "This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now."

 
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