Statement of Cathy Ventrell-Monsees President Workplace Fairness

Meeting of July 15, 2009 – Age Discrimination in the 21st Century-Barriers to the Employment of Older Workers

Thank you for this opportunity to discuss the major issues concerning age discrimination in employment. As a long-time advocate for older workers rights, I am most pleased that the Commission is holding this hearing to draw attention to recent Supreme Court decisions and trends that minimize protections against age discrimination.

Workplace Fairness is a non-profit organization working to preserve and promote employee rights. The Workplace Fairness website, www.workplacefairness.org., provides comprehensive information about job rights and employment issues nationally and in all 50 states. The Workplace Fairness website has been recognized as one of the leading legal and advocacy websites by PC Magazine and the Webby Awards.

I. DENIGRATION OF AGE DISCRIMINATION AND ADEA BY THE U.S. SUPREME COURT

In a series of recent decisions, the U.S. Supreme Court has repeatedly interpreted the ADEA to provide less protection for older workers and to impose greater burdens on older workers in attempting to prove age discrimination. Despite the shared purposes and prohibitions of the ADEA and Title VII, the Supreme Court has rejected the application of Title VII and its case law to parallel provisions of the ADEA, creating unwarranted burdens for older workers pursuing age discrimination claims, and unexplained complexities for the increasing number of older women and older minorities who pursue claims under the ADEA and Title VII.

A detailed explanation of those decisions follows below.

A. Supreme Court Disallows Mixed Motive/Same Action Theory of Proof in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).

The issue presented to the U.S. Supreme Court was whether a plaintiff must "present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case." Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2348 (2009). In Title VII cases, the Court had ruled that plaintiffs could secure a "mixed-motive" jury instruction based on the presentation of circumstantial or direct evidence. Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

In a shocking decision, the majority in Gross ignored the question presented and addressed a totally separate issue – the standard of causation in ADEA cases. The majority held "[b]efore reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA. [n.1 omitted] We hold that it does not." 129 S.Ct. at 2348. Neither party, nor the government, briefed the issue of causation or whether the burden shifts in ADEA disparate treatment cases.

In Gross, the majority interpreted the "because of" language in ADEA §4(a)(1), 29 U.S.C. §623(a)(1), as establishing a "but for" standard of causation. "[T]he ordinary meaning of the ADEA's requirement that an employer took adverse action 'because of' age is that age was the 'reason' that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (explaining that the claim "cannot succeed unless the employee's protected trait actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome." (emphasis added)). 129 S.Ct. at 2350. The Court concluded that "the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the "but-for" cause of the challenged employer decision…." Id. at *6.

In construing the same "because of" language in Title VII, the Supreme Court had permitted plaintiffs to show that a protected trait was "a motivating factor" to establish a violation, which shifted the burden of proof to the employer to prove it would have taken the same action. Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). Furthermore, the Court in Price Waterhouse rejected an interpretation of "because of" as imposing a "but for" standard in Title VII cases. Congress ratified this interpretation of "because of" from Price Waterhouse in the Civil Rights Act of 1991 which codified the mixed-motive/same decision defense and limited remedies in such cases under Title VII.

The majority in Gross dismissed the applicability of Price Waterhouse as "difficult to apply." The Court noted that it's interpretations of similar language in the ADEA and Title VII "has not been uniform." 129 S.Ct. at 2349, n. 2.

In a stinging dissent, Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer castigated the majority for reaching a question that had not been raised or briefed by the parties. More importantly, the dissent emphasized that the majority opinion:

• disregarded stare decisis that interpreted the ADEA's "because of" language as identical to Title VII's "because of" language;
• disregarded stare decisis, namely Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the Court rejected an interpretation of "because of" as imposing a "but for" standard;
• disregarded Congress' rejection of the "but for" standard when it amended Title VII in 1991; ! engaged in unnecessary lawmaking." 129 S.Ct. at 2353.

2. Judicial Activism by Justice Thomas Makes Age Cases Harder To Prove

One could characterize the opinion by Justice Thomas, joined by Chief Justice Roberts and Justices Scalia, Kennedy and Alito as the epitome of judicial activism. The majority rules on an issue not raised or briefed by the parties. It ignores well established legal precedent that the identical language in the ADEA and Title VII shall be construed similarly. It ignores well established precedent applying Title VII case law in ADEA cases. It disregards Congress' view that "because of" does not mean "but for."

Before the Supreme Court's decision in Gross, age discrimination cases were no more difficult to prove than cases brought under Title VII or the Americans with Disabilities Act (ADA). After Gross, it's a new ball game and not a level playing field for older workers.

First, victims of age discrimination with "mixed-motive" type claims are subject to different standards of proof than individuals with race or sex discrimination claim under Title VII. This is extremely problematic for older women and older minorities who often bring claims under both the ADEA and Title VII.

Second, the damage to ADEA enforcement by the Gross decision may go far beyond the holding in the case. The Supreme Court's disparagement of the ADEA and age discrimination is likely to embolden employers and conservative judges to use Gross to argue that the standard of proving discrimination under the ADEA is more onerous than under Title VII. It is not and should not be.

Just days after the Gross decision, older workers in ADEA cases are already facing motions from employers arguing that Gross changed the established standards of proof in ordinary disparate treatment cases. Specifically, employers are already arguing that Gross directs the lower courts to reject the McDonnell Douglas/pretext theory in ADEA cases. In another case in which the district court denied summary judgment shortly before Gross was decided, the employer has now moved for reconsideration after Gross, arguing that Gross imposes a heightened standard on ADEA plaintiffs to prove that age was "the determining factor" or "the sole reason" for the adverse action.

A

dvocates for older workers will argue that Gross does not change the type or quantum of proof a plaintiff must present to establish an ADEA violation. The majority decision in Gross repeated the well-established standard from Hazen Paper that age "actually played a role and had a determinative influence on the outcome." 129 S.Ct. at 2350. Other than Justice Thomas' use of the word "the" as opposed to "a" determining factor, there is nothing in the majority opinion to suggest that the Supreme Court is imposing a different or more difficult burden than that set forth in Hazen Paper. The majority decision does not state that "because of" means "solely because of." The Supreme Court rejected such an interpretation of the identical "because of" language in Title VII in Price Waterhouse, 490 U.S. at 241.

The majority opinion in Gross emphasized that "[t]here is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the "but-for" cause of their employer's adverse action, see 29 U.S.C. § 623(a), and we will imply none." 129 S.Ct. at 2351, n.4. Counsel representing employees should continue to argue that the Supreme Court has repeatedly rejected heightened proof standards in ADEA cases. See, e.g., Sprint/United Management Co. v. Mendelsohn, ___ U.S. ___,128 S. Ct. 1140, 1147 (2008) (rejecting per se admissibility rule with respect to trial witnesses); Meacham v. Knolls Atomic Power Laboratory, 554 U.S. ___, 128 S. Ct. 2395, 2401-03 (2008) (declining to shift burden of "reasonable factor other than age" to employee); Reeves v. Sanderson Plumbing Products, 530 U.S. 133,146-49 (2000) (rejecting "pretext-plus" requirement); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311-12 (1996) (rejecting requirement that replacement be younger than age 40); Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 419-20 (1985) (employer entitled to no special deference under "bona fide occupational qualification" defense).

B. Weakened Theory Of Disparate Impact Liability

In Smith v. City of Jackson (2005), the Supreme Court held that disparate impact analysis applies to ADEA claims, but held that the defense is different from Title VII's defense. The Court interpreted the ADEA to permit a claim of disparate impact based on the "remarkable similarity" between the congressional goals of the ADEA and Title VII, 544 U.S. at 235, n.5, and the identical text in the prohibition's section of the ADEA, 29 U.S.C. §623(a)(2), compared to Title VII, 42 U.S.C. §2000e-2(a)(2). 544 U.S. at 239.

However, because the ADEA provides a statutory defense for "reasonable factors other than age," 29 U.S.C. §623(f)(1), the Supreme Court viewed the defense to a disparate impact ADEA claim as narrower than the business necessity defense under Title VII. Compare 42 U.S.C. §2000e-2(k). The Court interpreted the RFOA defense to allow employers to justify practices that disproportionately disadvantage older employees only upon a showing that the employer's practice is "reasonable." Meacham v. Knolls Atomic Power Lab., 554 U.S. ___, 128 S.Ct. 2395 (2008). While the Court did not define the term "reasonable," its opinions in Smith v. City of Jackson and Meacham v. Knolls could be read to suggest that most practices would be deemed reasonable.

In contrast, the defense to a Title VII disparate impact claim is more stringent due to the Civil Rights Act Amendments of 1991, 42 U.S.C. § 2000e-2(k). Under Title VII, the defense to a disparate impact claim requires employers to demonstrate that a practice is both job-related and consistent with business necessity. This is clearly a more difficult standard to meet than a mere showing of reasonableness.

1. Difficulties for Employees Litigating Impact Claims After Smith and Meacham

The courts hold older workers to a strict standard for establishing a prima facie case of age discrimination under the disparate impact method of proof. ADEA plaintiffs should be subject to the same standards as applied to Title VII plaintiffs, since the disparate impact claim under the ADEA derives from language identical to that of a Title VII disparate impact claim.

Courts require plaintiffs to precisely identify and isolate the specific policy or practice responsible for the impact. See Smith v. City of Jackson, 544 U.S. at 241; Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 73 (2d Cir. 2004), vacated and remanded in light of Smith v. City of Jackson, 544 U.S. 228, 243 (2005), 461 F.3d 134, 139 (2d Cir. 2006); Smith v. Xerox Corp., 196 F.3d 358, 367-68 (2d Cir. 1999). Merely challenging the pay plan in Smith v. City of Jackson was not specific enough to identify the particular practice that caused the impact. 544 U.S. at 243.

The case of Meacham v. Knolls Atomic Power Laboratory, 381 F.3d 56, 73-74 (2d Cir. 2004), vacated and remanded in light of Smith v. City of Jackson, 544 U.S. 228 (2005), presents a good example of how plaintiffs can isolate specific employment practices when challenging subjective decision making in presenting a disparate impact claim. In Meacham, the plaintiffs identified subjective elements of the RIF process that caused a disparate impact based on age. The plaintiffs' expert examined the effects of five components in the RIF process which were infused with subjectivity and created the disparity. 381 F.3d at 73. On remand of the case from the Supreme Court, the Second Circuit affirmed the panel's earlier decision with respect to the plaintiff's prima facie case. See Meacham, 461 F.3d 134, 139 (2d Cir. 2006) ("We see nothing in City of Jackson that casts doubt on this holding").

In Allen v. Highlands Hosp. Corp., 545 F.3d 387, 405 (6th Cir. 2008), the Sixth Circuit described the plaintiff's burden to identify a specific practice as "nontrivial." Plaintiffs alleged that the company's desire to reduce costs translated to terminations of older workers. The court found that plaintiffs failed to isolate a specific practice and merely pointed to a generalized policy, which is insufficient to establish a prima facie case of disparate impact.

2. Employer Must Plead and Prove RFOA as an Affirmative Defense

It is well-established that defendants must plead affirmative defenses in their answers to a plaintiff's complaint. Thus, employers must specifically plead the reasonable factor other than age defense ("RFOA"), ADEA §4(f)(1), 29 U.S.C. §623(f)(1), in response to a disparate impact claim. In the remand from the Supreme Court and the Second Circuit of Meacham v. Knolls Atomic Power Lab., the district court held that the defendant had failed to plead or otherwise assert the RFOA as an affirmative defense. The court declined to excuse the defendant's waiver of the defense. ___ F.Supp.2d ___, 2009 WL 1212797 (N.D.N.Y. May 1, 2009).

The real issue will be whether courts hold employers to this standard of pleading and proof. As in other areas, the Supreme Court has suggested that the standard in age cases may be different than in other discrimination cases.

3. EEOC Should Adopt Regulations to Define the RFOA

I urge the EEOC to adopt regulations as proposed last year to delineate the showing contemplated by the RFOA defense.

It is critical that EEOC issue regulations that fully define the components of the reasonable factor other than age defense in ADEA Section 4(f)(1), 29 U.S.C. §623(f)(1), and to elaborate on the burden on the employer to plead and prove the defense. Since EEOC has substantive rulemaking authority under ADEA Section 9, 29 U.S.C. §628, courts should give deference to the EEOC's regulations.

I concur with the comments submitted by AARP in their comments to the Proposed Rulemaking on Disparate Impact under the ADEA and would like to reiterate three points made by AARP. First, it is absolutely clear that the factor in the RFOA defense cannot be related to age. As the Supreme Court explained in Meacham v. Knolls Atomic Power Lab., 554 U.S. ___, 128 S.Ct. 2395, 2403 (2008), "[R]easonableness is a justification categorically distinct from the factual condition 'because of age.'" Second, for a factor to be reasonable, the employer must establish that the factor is related to the job when performance or qualifications are in issue. Third, the burden of proving the RFOA is not an easy task, as the Supreme Court recognized in Meacham v. Knolls Atomic Power Lab., 554 U.S. ___, 128 S.Ct. 2395 (2008). "[T]he work of persuading fact finders that their choices are reasonable makes it harder and costlier to defend than if the employer merely bore the burden of production; nor do we doubt that this will sometimes affect the way employers do business with their employees." 554 U.S. at 2406.

4. Denial of Benefits Based on Age is Lawful: Kentucky Retirement Systems v. EEOC, 554 U.S. ___, 128 S.Ct. 2361 (2008).

While the next panel will address this issue more fully, this decision by the Supreme Court is another nail in the coffin for victims of age discrimination. Until this decision, it had been well established that if an employer used age to deny or reduce benefits, the employer would violate the ADEA. In Kentucky Retirement Systems, a state benefit plan reduced disability benefits to older employees based on the age of the employee when s/he became disabled. The plan calculated benefits based on the number of years the disabled employee would have worked until eligible to receive normal retirement benefits.

The Supreme Court held that the disability plan was not facially discriminatory even though age was an explicit factor that determined the amount of benefits. The Court reasoned that "the ADEA treats [pensions] more flexibly and leniently in respect to age" 128 S.Ct. at 2367, citing to ADEA provisions that permit the use of age to define "normal retirement age," 29 U.S.C. §623(l)(1)(A)(i), and to affirmative defenses relating to discrimination in severance benefits, 29 U.S.C. §623(l)(2), and in disability benefits, 29 U.S.C. §623(l)(3). The Court also noted that Congress has approved of benefit formulas that "take account of age" in SSDI benefits and in the plan used for federal employees until it was changed in 1984. 128 S.Ct. at 2368.

The result is that older employees who are denied benefits have to produce additional proof of age bias by the employer as the motive for the denial of benefits. This burden creates another significant difference between the ADEA and Title VII, which the Court has repeatedly interpreted to prohibit facially discriminatory plans without any additional proof of bias.

The Kentucky Retirement Systems v. EEOC case is a severe blow to age discrimination victims and to enforcement of the ADEA. One only needs to read the dissent by Justice Kennedy in the case, joined by Justices Scalia, Ginsburg, and Alito to recognize the damage of the decision:

• "The Court today ignores established rules for interpreting and enforcing one of the most important statutes Congress has enacted to protect the Nation's work force from age discrimination, the Age Discrimination in Employment Act of 1967…"
• "By embracing the approach rejected by the en banc panel and all other Courts of Appeals that have addressed this issue, the Court creates unevenness in administration, unpredictability in litigation, and uncertainty as to employee rights once thought well settled." Id. at 2372.
• "[T]he plan's discriminatory classification rests upon a stereotypical assumption that itself violates the Act and the Court's own analytical framework." Id.
• "[T]he Court seems to adopt a new definition of the term "discriminate" by holding that there is no discrimination on the basis of a protected trait if the trait is one among several factors that bear upon how an employee is treated." Id. at 2377.
• "Until Congress sees fit to change the language of the statute, however, there is no principled basis for upholding Kentucky's disability benefits formula." Id. at 2378.

The effect of the Court's decision in Kentucky Retirement Systems is to sanction blatant age discrimination in employee benefits. In two significant ways, the Supreme Court in Kentucky Retirement Systems disregards Congress' directives in enacting the Older Workers Benefit Protection Act of 1990 (OWBPA). First, by holding that a plan is not facially discriminatory when it uses age to deny or reduce benefits, the decision mirrors the Supreme Court's decision in Public Employees Retirement System v. Betts, which Congress overturned in the OWBPA. Second, by requiring older employees to present additional evidence of age bias, independent of the use of age in a benefits plan, the decision essentially nullifies the OWBPA.

The decision in Kentucky Retirement Systems makes it almost impossible for older employees to prove age discrimination in an employee benefit plan because they must now produce evidence of age bias independent of the use of age in the benefit plan itself. The courts have repeatedly recognized that such evidence is exceedingly rare. See United States v. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) "[t]here will seldom be 'eyewitness testimony' as to the employer's mental processes."

The danger of the reasoning of Kentucky Retirement Systems extends far beyond the denial of benefits. Pension status or eligibility could be used by employers to discriminate in any aspect of the employment context, such as promotions, assignments, or wages. As the dissent in Kentucky Retirement Systems warns: The Court "creates a virtual safe harbor for policies that discriminate on the basis of pension status, even when pension status is tied directly to age and then linked to another type of benefit program." 128 S.Ct. at 2375.

D. No ADEA Remedies Permitted Against State Government Employers: Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).

Congress amended the ADEA in 1974 to extend its protections to employees of state and local governments. Twenty-six years later, the Supreme Court essentially erased those protections for state government employees in Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). In Kimel, the Supreme Court held that Congress had not abrogated state sovereign immunity to suits by individuals under the ADEA. As a result of the Kimel decision, although age-based discrimination by State employers remains unlawful, the victims of such discrimination lack important remedies for vindication of their rights that are available to all other employees covered under that Act, including employees in the private sector, local government, and the Federal Government.

The only real avenue of redress for state employees is to have EEOC sue their employers to stop their discriminatory practices. I urge Congress to provide additional funding to the EEOC for litigation in this area.

II. DIFFICULTIES IN PROVING AGE DISCRIMINATION – DISPARAGEMENT OF AGEIST COMMENTS

A statement that is clearly a derogatory remark about an employee's age is probative of the employer's ageist animus. Yet, the courts have been overly strict in determining whether an ageist comment is relevant evidence of age discrimination.

In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000), the Supreme Court ruled that remarks are relevant evidence of age discrimination if their content indicates age animus and the speaker of the remarks was "primarily responsible" for the adverse action. In Reeves, the plaintiff presented evidence that several months before he was fired, his supervisor told Reeves that he was so old that he "must have come over on the Mayflower." Two months before firing Reeves, the same supervisor told Reeves that he was "too damn old to do the job" when Reeves was having difficulty starting a machine. Id. The Fifth Circuit discounted these statements as not relevant evidence of discrimination because they "were not made in the direct context of Reeves' termination." Id. at 152.

The Supreme Court rejected the Fifth Circuit's restrictive view of ageist comments that limited their relevance to instances when the remarks were made in the "direct context of the adverse action." The Supreme Court did not even question that statements made months before the adverse action were relevant.

In Ash v. Tyson Foods, Inc., 546 U.S. 454, 456 (2006), a race discrimination case, the Supreme Court set forth a general methodology for assessing whether a comment, term, or phrase is evidence of animus. The Court considers five factors relevant to determining the meaning of a disputed remark: (1) context, (2) inflection, (3) tone of voice, (4) local custom, and (5) historical usage. The white manager in Ash had on several occasions called the plaintiff, a middle-aged African American man, "boy." The Eleventh Circuit held that the remark was not evidence of racial animus. The Supreme Court reversed, noting that the term standing alone is not always benign, but also need not have the modifier "black" to render the term racist.

The same standards applied to determining the relevance of a racist or sexist comment should apply to an ageist comment. In Blair v. Henry Filters, Inc., 505 F.3d 517, 525 (6th Cir. 2007), the Sixth Circuit acknowledged inconsistencies in finding that ageist statements required more of a nexus to the adverse action, compared to racist and ethnic slurs which the circuit had found to be direct evidence in other cases even though they were temporally removed from the termination decision and did not address the plaintiff in particular. Blair properly acknowledges that the same analysis should apply to all protected categories and courts should not impose stricter standards in examining comments about age.

In the standards set forth by both Reeves and Ash, neither the timing of the statement nor whether the statement was made during or about the adverse action are considered factors in determining the relevance of the statement as to the employer's animus. Yet numerous courts continue to characterize ageist comments as "stray remarks" because the remarks were made at a time remote from the challenged employment action, the remarks did not relate to or occur within the direct context of the adverse action, or the remarks were not made by the decision-maker. The reliance on these factors, which make up the "stray remarks doctrine," cannot be squared with the factors applied in Reeves and Ash, which rejected the applicability of such factors in determining whether a statement reflects animus. Reeves changed the determinative factors in the analysis courts have used by recognizing the clearly ageist statements made by a decision-maker as "additional evidence" of "age-based animus," even though the statements were remote in time from the adverse action and not related to the decision-making process.

The Supreme Court's methodology explains how and why certain comments reflect age bias by the employer. The older employee who is the subject of the comment can testify to the first four factors: context, inflection, tone, and local custom. Other employees could also bring forward their understanding of the local usage of the word. Testimony about the first three factors is particularly important because no court could properly evaluate such evidence at summary judgment — meaning it is for the jury's consideration. Historical usage could be documented from the dictionary or literary works.

While statements about an employee's age or ageist stereotypes can constitute direct evidence of discriminatory intent, courts typically view ageist comments as circumstantial evidence that support an inference of pretext and discriminatory animus. Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000). Such statements are one of the few mechanisms for delving into the employer's state of mind and for uncovering the stereotypes that often motivate age discrimination.

After Reeves, a clear derogatory comment about age made by a decision-maker should be relevant proof of the decision-maker's ageist animus. Such comments should be submitted to the jury as evidence for the jury to determine their weight in showing age discrimination. See Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000) (reversing summary judgment in light of ageist comments). The context and the timing of the comments should only affect the weight of the evidence. Statements made within the context of the adverse action and made close in time to the adverse action should strengthen the weight of the statement.

I suggest that EEOC develop policy guidance applying Supreme Court precedent to explain the standards for examining the relevance and weight of an ageist comment and make the application of such standards uniform across Title VII, the ADEA, and ADA.

III. EEOC GUIDANCE ON WAIVERS AND RELEASES

First, I am pleased that EEOC is issuing technical assistance for employees confronted with a waiver in exchange for severance pay. This guidance is timely and needed. Waivers and releases can present confusing and complicated situations for all workers, particularly when workers are in vulnerable situations in this difficult economic climate.

For older workers, releases of rights and claims under the ADEA must meet the minimum standards of the Older Workers Benefit Protection Act (OWBPA), 29 U.S.C. §626(f). While the EEOC's regulations on waivers and releases have been helpful to advocates and employers, more guidance should be issued to help older workers navigate through the complicated issues presented by release agreements. For example, many release agreements contain a release and a covenant not to sue. Such terms are usually not defined in the agreement and are too legalistic to be understood by laypersons. See, e.g., Thomforde v. IBM Corp., 406 F.3d 500 (8th Cir. 2005) (invalidating release as not understandable. "Once IBM chose to use the legal terms of art in the Agreement, IBM had a duty to carefully explain the provisions." Id. at 503-504.); Syverson v. IBM Corp., 472 F.3d 1072 (9th Cir. 2007) ( The court stated that it did "not agree that the direction to consult an attorney or an IBM employee mitigates confusing waiver language." Id. at 1161.)

IV. LEGISLATIVE RECOMMENDATIONS

Forty years after the ADEA's enactment, age discrimination continues to impede the achievement of equal treatment for older persons in the work place. ADEA charges filed with the EEOC in FY 2008 jumped more by more than 28% from the previous year to 24,582, which is significantly more charges than in any of the past 15 years. See https://www.eeoc.gov/statistics/charge-statistics-charges-filed-eeoc-fy-1997-through-fy-2019.

One explanation for ageism's perseverance may be that historically society has perceived age discrimination as more of an economics issue than a question of fundamental civil rights. Ageism has been viewed as different from and less serious than racism or sexism in the work place. This perception has relegated the ADEA to second class status amongst the country's civil rights statutes.

One of the most disturbing examples of this trend is a case challenging a reduction-in-force where the vice president in charge of layoff decisions had commented, "there comes a time when we have to make way for younger people." Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 512 (4th Cir. 1994). In debating the relevance of the statement to the age discrimination claim, the court began by noting that because the comment had been made a couple of years prior to the reduction-in­force, it could not be used as evidence. But then, the court went on to say that the statement "reflects no more than a fact of life and as such is merely a 'truism' that carries with it no disparaging undertones. Moreover, statements about age may well not carry the same animus as those about race or gender. Unlike race or gender differences, age does not create a true we/they situation – barring unfortunate events, everyone will enter the protected age group at some point in their lives. . . . [The vice president's] remark should be seen for the non-actionable reflection on generational passage that it was." Id.

Numerous courts have favorably cited this decision and agreed with its premise. Yet, the ADEA was enacted because Congress determined that there is no time when an older person must make way for a younger person in the work place because of age. The premise of the ADEA is that each individual has the right to remain a productive member of society and to be judged based on his or her individual abilities and contributions to their profession and community, not based on their age. Less capable and productive workers may need to make way for more capable and more productive workers. But, the ADEA makes it clear that older workers need not make way for younger workers simply because they are older.

In light of the aging of the workforce and the pervasiveness of age discrimination in the workplace in the 21st century, the question arises whether the ADEA can adequately address these challenges.

Many of the differences between Title VII and the ADEA result from Congress' initial design to not include age in Title VII of the Civil Rights Act of 1964 and to rely on the procedural and remedial structure from the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. ("FLSA"). The primary reason Congress gave for not including age in Title VII was the need to study the problem. The primary reason Congress gave for adopting the FLSA's procedures and remedies was to insure effective enforcement of the new statute (in 1967) by the Department of Labor, which enforced the FLSA, rather than adding to the enforcement burden of the EEOC which had just been created to enforce Title VII. Recognizing that enforcement of the ADEA properly belonged with enforcement of Title VII, Congress transferred enforcement authority for the ADEA from DOL to EEOC in 1979. Yet Congress did not change the procedural or remedial differences between the ADEA and Title VII.

The ADEA was supposed to reflect a national commitment to combat age discrimination, at a time when many states did not have laws prohibiting age discrimination. Forty years later, most of the states not only have age discrimination laws, the state laws include age within their anti-discrimination law, so that age discrimination enforcement is not viewed as less serious than other forms of discrimination at the state level. And many state civil rights laws provide better remedies and stronger enforcement than the federal ADEA.

It is time for Congress to act boldly to erase the differences between the ADEA and Title VII created by the Supreme Court's decisions and the Court's denigration of age discrimination. It is also time for Congress to undo the different treatment between age and other forms of discrimination which it created when it enacted the ADEA as separate from Title VII, and in failing to amend the ADEA when it amended Title VII.

Congress should enact legislation that eliminates the differences between the ADEA and Title VII, to:

• Overturn v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2348 (2009); Kentucky Retirement Systems v. EEOC, 554 U.S. ___, 128 S.Ct. 2361, 2371 (2008); Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
• Apply the same standards of proof for disparate treatment and impact claims
• Apply the same defenses
• Apply the same remedies, including attorneys' fees and expert fees
• Apply the same coverage to state governmental employers
• Apply the same procedures for class actions
• Require greater deference to EEOC regulations and rulemaking

A comprehensive and concerted effort is needed to recognize that age discrimination is as debilitating to the individual and as harmful to society as other forms of discrimination. Most importantly, older workers, employers, and society must internalize and practice the principle that individuals must be judged based on ability, not age – without exception. The outdated explanations and rationalizations for the different views and treatment of ageism compared to other forms of discrimination are increasingly difficult to justify in the 21st century. It is time for a new age.