You probably know it’s illegal under the Age Discrimination in Employment Act (ADEA) for employers to discriminate against workers over 40 years old. You may also know that large groups of over-40-year-old workers can sue as a group, and file what is known as a class-action lawsuit. Occasionally, a class-action lawsuit will involve sub-classes, i.e. smaller classes within the class. Can employees do that under the ADEA? Can there be a class of similarly situated over-40 year-old workers, and, say a sub-class of 50 and over workers? Maybe… What might that mean for employers? It seems the jury’s still out on that one. Read on after the jump to learn more…
All the anti-discrimination laws allow for claims of disparate impact discrimination. That is unintended discrimination that results from facially neutral employment policies that, as applied, adversely impact a disproportionate number of certain groups of people protected by law. This is true of the ADEA– even, according to the EEOC, when the claim is that a sub-group within the group or class of over-40-year-old workers may have received less favorable treatment than the rest of the group of plaintiffs. Employers, and their attorneys, say that since the ADEA as written does not say that so therefore it does not. So who is right? Well, we may soon get some insight from the Third Circuit Court of Appeals, as it has just such a case pending before it (more on that in a bit).
Does it really matter though? It very well might. Why should it? With the work force is aging, and many U.S. workers working longer than those in previous generations, and with our shifting perceptions of “old”, treatment of workers over 40 and workers 50 and over may differ. So, in many workplaces, workers in their 40’s may not experience age discrimination, whereas those who are 50 and over might. If an employer replaces 50-something year-old workers with 40-something- year-olds, the employer might be discriminating based on age–and a sub-class might be the most effective tool in litigation–but might not be allowed under the ADEA as currently written.
OK, so what’s the case that might be of interest? It’s called Karlo v. Pittsburgh Glass Works, LLC, 3d Cir., No. 15-3435. What’s the skinny on this case? Basically, a group of workers over 50 are appealing a US District Court’s dismissal of their bid to be certified as a sub-class, because, they argue that they were adversely impacted by their former employer’s RIF in a way that 40-something-year-old workers were not. They argue that workers in their 40’s are not necessarily seen as “old”.
This case doesn’t just involve the terminated “older” workers and the employer. The EEOC, the US Chamber of Commerce and an employer’s organization known as the Equal Employment Advisory Council (EEAC) have also submitted “Friends of the Court” (known in Latin as amicus curiae) briefs on this issue. (By the way, they don’t really get to be buddies with the justices by submitting briefs. They do, however submit briefs on an issue where they believe they can supply relevant information and arguments, and where they have an interest in the outcome, even though they are not actually parties to the case. Some of us were silly enough to pay ridiculous tuitions to learn that.) Anyway, the EEOC cites the ADEA’s text, its legislative history and intent that it remedy age discrimination as indications that it does or should allow sub-groups. There are also a few Supreme Court precedents it says support this argument but I won’t bore you with that today. (Maybe another time. We’ll see.) The EEOC makes other arguments that I still have to get my head around so I won’t try to get into them now. (Again, maybe another time — or not.) Now, one thing that does not help the EEOC: the Second, Sixth and Eighth Circuits have answered this question in the negative. On the other hand, some of the trial courts (aka US District Courts) have answered in the affirmative.
What happens if sub-classes are allowed to pursue ADEA claims? Employers could have more exposure leaving them more vulnerable. Litigation could become more complicated and protracted (because it isn’t complicated and protracted enough?). On the other hand, if perceptions about age in the workforce have changed, then maybe a narrow reading of the ADEA isn’t appropriate. On the other hand (yes, I know I’m up to three hands now) if the ADEA can’t reasonably be read to include sub-classes, then isn’t the appropriate action to amend it? To some, this debate seems very similar to the question of whether Title VII’s ban on sex discrimination protects the LGBT population.
OK, we’re not going to solve this question, or determine whether sub-classes are really a big problem– at least not here and not now. If you are an employer and you are concerned, here are two things you can do: 1. Base employment decisions and practices on job-related factors and not age-related factors as much as possible; and 2. Whatever you do, document it and document your reasons and any other supporting evidence. It could end up being invaluable.
OK, I think our time is up this week, so join us here next week for more fun!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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