The landscape of age discrimination law continues to evolve through significant court decisions that shape how these cases are litigated, what employees must prove, and what remedies are available. Understanding these landmark rulings provides valuable context for anyone facing potential age discrimination or involved in age-related employment disputes.
At Nisar Law Group, we closely monitor these developments to provide informed, strategic guidance to our clients. This article examines recent influential age discrimination cases and explains their practical implications for employees and employers alike.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
The Foundational Cases: Setting the Standard
Before exploring the most recent developments, it’s important to understand the foundational cases that established the framework for current age discrimination jurisprudence.
Gross v. FBL Financial Services (2009)
While not the most recent landmark case, Gross v. FBL Financial Services fundamentally altered the landscape of age discrimination litigation and continues to significantly impact how these cases are litigated today.
In this watershed 2009 decision, the Supreme Court established that plaintiffs in Age Discrimination in Employment Act (ADEA) cases must prove that age was the “but-for” cause of the adverse employment action—meaning the action would not have occurred if not for age discrimination.
This heightened causation standard represented a significant departure from the “motivating factor” test applied in other discrimination contexts, making age discrimination claims more challenging to prove. Under Gross, showing that age was merely one factor among several in an adverse decision is insufficient; plaintiffs must demonstrate that age was the determinative factor.
This ruling fundamentally shaped all subsequent age discrimination litigation, establishing a more demanding standard that plaintiffs continue to grapple with today. Every age discrimination case now requires developing evidence that can satisfy this challenging causation requirement.
Babb v. Wilkie (2020): A Different Standard for Federal Workers
In an important qualification to the Gross standard, the Supreme Court recognized in Babb v. Wilkie that federal government employees face a lower causation threshold in age discrimination cases.
The Court distinguished the ADEA’s federal-sector provision, which states that personnel actions affecting federal employees aged 40 and older shall be made “free from any discrimination based on age.” This language, the Court held, establishes a less demanding standard than the “but-for” causation required in private-sector cases.
Under Babb, federal employee plaintiffs can establish a violation if age was a factor in the challenged employment decision, even if it wasn’t the determinative factor. However, the Court clarified that to receive remedies like back pay or reinstatement, federal employees must still satisfy the stricter “but-for” causation standard.
This decision created a two-tier system where:
- Federal employees can more easily establish that discrimination occurred
- But still face the higher standard when seeking certain remedies
For federal workers, this ruling provides an important advantage in establishing liability, even as the remedial standard remains challenging.
Recent Supreme Court Decisions
Bostock v. Clayton County (2020): Expanding Discrimination Protections
While primarily focused on sex discrimination, Bostock v. Clayton County has important implications for age discrimination law as well. In this landmark 2020 case, the Supreme Court held that Title VII’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity.
The Court’s reasoning emphasized that discrimination occurs when an employee is treated differently because of a protected characteristic, even if other factors also contributed to the decision. This textualist approach to anti-discrimination law could potentially influence future interpretations of the ADEA.
Specifically, Bostock’s reasoning potentially challenges the strict “but-for” standard established in Gross by recognizing that discrimination exists when a protected characteristic (like age) plays a role in an employment decision—even if other factors also influenced the outcome.
While Bostock hasn’t explicitly overruled Gross, some legal scholars and lower courts have begun exploring whether its reasoning might support revisiting the strict causation standard for age discrimination claims. This represents a developing area to watch in coming years.
Comcast Corp. v. National Association of African American-Owned Media (2020): Reinforcing Causation Standards
In contrast to the potential openings created by Bostock, the Supreme Court’s decision in Comcast Corp. v. National Association of African American-Owned Media reinforced the “but-for” causation standard in another civil rights context.
The Court unanimously held that plaintiffs bringing claims under 42 U.S.C. § 1981, which prohibits race discrimination in contracting, must prove but-for causation throughout the litigation process, including at the pleading stage.
While not directly addressing age discrimination, this decision suggests the Court remains committed to strict causation standards in discrimination cases, potentially limiting hopes that Bostock might lead to a relaxation of the Gross standard for ADEA claims.
Circuit Court Developments
O’Donnell v. Rhode Island Department of Corrections (1st Circuit, 2022): Clarifying Hostile Work Environment Claims
The First Circuit’s 2022 decision in O’Donnell provided important clarification on age-based hostile work environment claims. The court emphasized that age-related comments must be severe or pervasive enough to alter workplace conditions and create an abusive environment to support such claims.
Importantly, the court distinguished between general workplace unpleasantness and actionable harassment based on age. Isolated age-related comments or jokes, while inappropriate, may not rise to the level of creating a legally actionable hostile environment without evidence that they were frequent, severe, physically threatening, or humiliating enough to interfere with work performance.
This decision underscores the importance of thoroughly documenting all age-related comments, their frequency, context, and impact when building a hostile work environment case based on age. It also highlights the high threshold such claims must meet to succeed.
Pelcha v. MW Bancorp, Inc. (6th Circuit, 2021): Addressing Retirement Discussions
In Pelcha, the Sixth Circuit addressed a common scenario in age discrimination cases: discussions about retirement plans. The court clarified that an employer’s inquiries about retirement plans do not automatically constitute evidence of age discrimination.
The plaintiff, a bank employee in her early 60s, claimed that questions about her retirement plans followed by termination for a minor policy violation demonstrated age discrimination. The court disagreed, holding that retirement discussions alone, without evidence connecting them to adverse employment actions, were insufficient to establish discriminatory intent.
This decision highlights the challenge employees face in connecting retirement discussions to discriminatory motives. While persistent retirement inquiries might contribute to a pattern of evidence suggesting age bias, employees must demonstrate how these discussions specifically relate to adverse employment decisions rather than legitimate business planning.
Richardson v. Chicago Transit Authority (7th Circuit, 2022): Weight Discrimination and the ADEA
In an interesting intersection of disability and age discrimination law, the Seventh Circuit addressed whether weight discrimination might implicate the ADEA. The court held that adverse employment actions based on weight or physical characteristics do not inherently constitute age discrimination, even if such characteristics might be more common among older workers.
The plaintiff needed to show that the employer’s concerns about his weight were a proxy for age-based discrimination rather than legitimate operational concerns. Without evidence directly connecting these concerns to age stereotyping, the age discrimination claim failed.
This case illustrates how courts approach situations where facially neutral factors might disproportionately affect older workers. To prevail, plaintiffs must demonstrate that such factors serve as proxies for age discrimination rather than legitimate business considerations.
Recent Developments in COVID-Related Age Discrimination
Bischoff v. Brothers Services Company (D. Md. 2022): Pandemic Accommodation Requests
The COVID-19 pandemic generated novel age discrimination issues, with older workers often facing greater health risks from infection. In Bischoff, a federal district court addressed whether denying COVID-related accommodations to older workers could constitute age discrimination.
The court held that requests for remote work accommodations based solely on age-related COVID risk, without an underlying medical condition, did not trigger ADEA protection. The ruling distinguished between discrimination based on age itself versus actions based on age-correlated factors like increased COVID vulnerability.
This decision illustrates how courts may approach age-related accommodation requests during public health crises. It suggests that connecting such requests to specific medical conditions rather than age alone might provide stronger protection under disability discrimination laws than under the ADEA.
Smith v. Northcraft (D.D.C. 2021): Age and Workplace Return Policies
In Smith, the District Court for the District of Columbia addressed allegations that workplace return policies following COVID-19 closures discriminated against older workers. The court recognized that blanket policies treating older workers differently due to perceived COVID vulnerability could potentially violate the ADEA.
However, the court emphasized that employers could implement neutral safety protocols applicable to all employees without triggering age discrimination concerns, even if such measures happened to benefit older workers disproportionately.
This ruling suggests that pandemic-related policies explicitly targeting older workers might violate the ADEA, while neutral safety measures that happen to address risks more common among older employees likely would not.
Significant Settlements and Jury Verdicts
EEOC v. Yale New Haven Hospital (D. Conn. 2023)
In a landmark age discrimination settlement, Yale New Haven Hospital agreed to pay $2.8 million to resolve claims that its “Late Career Practitioner Policy” discriminated against older healthcare providers. The policy required neuropsychological and eye examinations for practitioners age 70 and older seeking reappointment.
The EEOC argued that the policy violated the ADEA by imposing additional requirements based solely on age rather than individualized assessment of competency. The settlement required the hospital to:
- Eliminate the age-based testing policy
- Develop a non-discriminatory assessment program
- Implement enhanced age discrimination training
- Pay monetary relief to affected physicians
This case highlights the EEOC’s continued focus on combating facially discriminatory policies that explicitly target employees based on age, particularly in healthcare settings where mandatory retirement and age-based testing have historically been common.
Fester v. Fred Meyer, Inc. (Or. Cir. Ct. 2022)
In a notable jury verdict, a 59-year-old pharmacy manager was awarded $2.1 million after proving he was terminated based on age while younger, less qualified managers were retained during restructuring. The jury was persuaded by evidence showing that:
- The plaintiff had consistently positive performance reviews
- Management had made comments about wanting “new blood” and “fresh perspectives”
- Younger managers with performance issues were retained
- The company’s stated reasons for selection shifted over time
This substantial verdict demonstrates that juries remain receptive to age discrimination claims when presented with compelling evidence of pretext and discriminatory intent, despite the challenging legal standards established by Gross.
Emerging Trends and Their Implications
“Okay, Boomer” and Age-Based Comments
Several recent cases have addressed whether generational remarks like “Okay, Boomer” or references to “old school” thinking constitute evidence of age discrimination. Courts have generally held that isolated generational references, without more, rarely establish discriminatory intent. However, when part of a broader pattern of age-focused comments, especially from decision-makers, such remarks can contribute to an inference of discrimination.
This trend reinforces the importance of documenting all potentially age-related comments while recognizing that building a successful case typically requires demonstrating patterns of bias rather than isolated remarks.
Disparate Impact Challenges to Experience Caps
An emerging area of age discrimination litigation involves challenging job postings and hiring criteria that cap years of experience or specifically target early-career professionals. These facially neutral policies may disproportionately impact older workers through disparate impact, even without explicit age preferences.
Recent EEOC enforcement actions have targeted digital recruiting platforms and job advertisements specifying “digital natives,” maximum experience levels, or graduation year requirements. While case law in this area continues to develop, employers face increasing scrutiny for recruitment practices that could systematically disadvantage older applicants.
For job seekers over 40, these developments suggest potential legal recourse when encountering experience caps or early-career focused recruitment that effectively screens out older applicants.
Artificial Intelligence and Age Discrimination
As employers increasingly utilize artificial intelligence and algorithmic decision-making in hiring and evaluation, concerns about encoded age bias have emerged. Recent cases have begun challenging AI-driven hiring tools that may implicitly disadvantage older applicants through correlations with age-associated factors.
The legal framework for addressing algorithmic age discrimination remains in early development, with significant questions about causation, transparency, and appropriate remedies still unresolved. However, this represents an important emerging frontier in age discrimination law that will likely see significant development in coming years.
Practical Implications for Employees
Recent case developments yield several practical lessons for employees concerned about age discrimination:
Documentation Remains Critical: The heightened causation standard established in Gross and reinforced in subsequent cases makes comprehensive documentation of age-related comments, comparative treatment, and performance history essential. Contemporaneous records of discriminatory statements or patterns can make the difference in meeting the “but-for” standard.
Focus on Decision-Maker Statements: Courts continue to give greatest weight to age-related comments made by individuals directly involved in employment decisions. Documenting statements from supervisors, HR personnel, or executives involved in adverse actions provides more compelling evidence than comments from colleagues without decision-making authority.
Connect Comments to Actions: Successfully linking age-related comments directly to adverse employment decisions significantly strengthens discrimination claims. Timeline evidence showing comments occurring close to or during decision-making processes is particularly valuable.
Identify Younger Comparators: Cases consistently demonstrate the importance of identifying similarly situated younger employees who received more favorable treatment. Documenting specific comparators with similar qualifications, positions, and performance who were treated differently remains a cornerstone of successful age discrimination claims.
Consider State Law Remedies: Given the challenging “but-for” standard under federal law, many successful age discrimination cases now incorporate state law claims that may offer more favorable causation standards, broader coverage, or enhanced remedies.
Conclusion: The Evolving Legal Landscape
Age discrimination law continues to evolve through significant judicial decisions, presenting both challenges and opportunities for workers over 40. While the “but-for” causation standard remains a significant hurdle in federal cases, emerging decisions in areas like retirement discussions, pandemic accommodations, and recruiting practices provide important clarification about how the ADEA applies in contemporary workplace scenarios.
Successful navigation of this complex legal landscape requires understanding these precedents and their practical implications for building effective age discrimination claims. By staying informed about these developments and working with experienced counsel, employees can more effectively protect their rights in an evolving legal environment.
At Nisar Law Group, we remain committed to helping clients understand how these legal developments affect their specific situations. If you believe you’ve experienced age discrimination or have questions about how recent case law might impact your workplace rights, we encourage you to contact us for a confidential consultation tailored to your unique circumstances.
Related Resources
- Age Discrimination in the Workplace: Complete Guide
- Understanding the Age Discrimination in Employment Act (ADEA)
- Proving Age Discrimination: Evidence You Need
- Age Discrimination During the Hiring Process
- Age-Related Comments: What Constitutes Evidence
- Filing an Age Discrimination Claim: Step-by-Step Process
