Federal law prohibits age discrimination by employers. It protects people who are 40 and older from facing rejection from employment or the denial of certain employment-related benefits solely on the basis of their age.
But recently, a federal appeals court considered whether it’s ageism to discriminate against people over-50 compared with those who are between 40 and 50? It’s a question that hadn’t before been raised in the U.S. Court of Appeals for the Third Circuit until Karlo v. Pittsburgh Glass Works, LLC.
According to court records, the complaint centers on alleged violations of the Age Discrimination in Employment Act (ADEA). The workers who are named plaintiffs in the claim all worked for the defendant, which supplied materials to the auto industry. In 2008, when the industry started to tank, defendant engaged in numerous reductions in its workforce. The company ultimately fired about 100 salaried employees at some 40 locations/ divisions. The individual directors had a great deal of individual latitude in deciding who should stay and who should go. The company didn’t train directors in how to implement the reductions in force, and there were no written guidelines or policies. Plaintiffs in question were each let go and each was over the age of 50.
Plaintiffs argued the company leaders chose to let go of workers who were over the age of 50, in favor of keeping younger workers, including those who were between the ages of 40 and 50. Of course, those younger workers are still technically a protected class themselves.
The company is arguing that if workers over 40 are included in plaintiffs’ data analysis, then there is no statistically major finding of any disparate treatment. Defendant further argued under ADEA, plaintiffs should not be able to assert that discrimination against a subgroup that is protected under the statute (i.e., only people over 50, as opposed to including those 40 and older). In other words, plaintiffs have to prove discrimination against everyone in the protected class, not just a portion of them.
Circuit courts in three other jurisdictions have accepted this argument. Each held that it does not bar discrimination against subgroups of plaintiffs. However, the the Third Circuit ruled differently. The appellate court rejected the argument, finding broadly that age is not a clear-cut category. Discrimination doesn’t occur on those lines. Given the disparity now between the sister appellate courts, it’s probable that we’ll see the case appealed to the U.S. Supreme Court.
As a recent analysis by Bloomberg pointed out, this age discrimination case raises some interesting questions about what it could mean for other forms of discrimination. For example, what if an employer only discriminates against black job candidates who have African-American-sounding names, but not those with traditionally European names? In a case like that, the statistical analysis of alleged racial discrimination against black workers could fail. However, we also know that while race is generally considered a “binary category,” there is historical precedent in which some individuals may be seen as existing on a sort of “race continuum.” We are seeing similar ideologies play out with gender – i.e., there is one some people may identify as one gender, but be biologically another. This is something the U.S. Supreme Court justices will need to consider if and when they weigh this case.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Age Is Just a Number. Age Discrimination Is Trickier., Jan. 15, 2017, By Noah Feldman, Bloomberg.com
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California Garment Industry Wage Theft Rampant, Say Officials, Jan. 21, 2017, Orange County Age Discrimination Lawyer Blog