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Age Discrimination in Employment Act
EEOC Issues Proposed Rulemaking For “Reasonable Factors Other Than Age” Test Under ADEA

The Equal Employment Opportunity Commission (“EEOC”) recently issued a notice of proposed rulemaking to define the meaning of the “reasonable factors other than age” defense under the Age Discrimination in Employment Act (“ADEA”).

This notice of proposed rulemaking was in response to two decisions issued by the United States Supreme Court in recent years.  First, in Smith v. City of Jackson (March 30, 2005), the Supreme Court ruled that an employment practice that has a disparate impact on older workers is discriminatory unless the practice is justified by a “reasonable factor other than age.”  Second, in Meacham v. Knolls Atomic Power Laboratories (June 19, 2008), the Supreme Court ruled that the employer bears the burden of production and persuasion in making the “reasonable factors other than age” defense in an ADEA disparate impact claim.

The proposed rule explains that the “reasonable factors other than age” defense should be analyzed on an individualized, case-by-case basis.  The standard to be applied in this analysis is that of a “reasonable employer” under the circumstances.  In addition, the proposed rule also explains that the “reasonable factors other than age” defense appplies only if the challenged employment practice is not based on age.  Finally, the proposed rule provides a non-exhaustive list of factors relevant to whether an employment practice is “reasonable” and whether it is based on a factor “other than age.”

A copy of the Notice of Proposed Rulemaking can be viewed here.

 
Union Can Waive Employees’ Right to Sue for Discrimination

In a 5-4 decision issued today, the United States Supreme Court ruled in 14 Penn Plaza v. Pyett (U.S. Supreme Court, April 1, 2009) that a provision in a collective bargaining agreement that “clearly and unmistakably” waived an employee’s right to sue under the Age Discrimination in Employment Act (“ADEA”) was enforceable.

In its decision, the court noted that an agreement to arbitrate employment discrimination claims is a mandatory subject of bargaining under the National Labor Relations Act (“NLRA”) In addition, the court also noted the ADEA itself does not remove age discrimination claims from the NLRA’s broad sweep, and there is nothing in the law to suggest any type of distinction between arbitration agreements signed by an individual and those agreed by a union representative.

Therefore, where employees have a collective bargaining agreement that says arbitration is the “sole and exclusive remedy” for ADEA claims, the employees have waived their right to litigate those claims in court.

 
ADEA Precludes § 1983 Age Discrimination Claims
In Ahlmeyer v. Nevada System of Higher Education, (9th Cir., February 18, 2009), the U.S. Court of Appeals for the Ninth Circuit ruled that the Age Discrimination in Employment Act is the exclusive remedy for age discrimination by employers, and therefore, a plaintiff could not bring an age discrimination lawsuit as a Section 1983 claim.

The court noted that every circuit to address the issue has reached the same conclusion. The court reasoned that permitting plaintiff’s to bring Section 1983 actions for age discrimination would enable them to avoid the ADEA’s specific provisions, and that it was unlikely Congress would have intended to allow plaintiff’s to bypass such provisions.