"Overpaid" older workers and the age discrimination in employment act

Washington Law Review

Volumn 71, Issue 3, 1996, Pages 769-796

  Crawshaw Lewis, Stacey ^a  

^a NONE

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EID: 0346618041     PISSN: 00430617     EISSN: None     Source Type: Journal    
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References (171)

1. See U.S. Dep't of Labor, Report of the Secretary of Labor: Labor Market Problems of Older Workers (noting difficulties involved in measuring age discrimination but concluding that existence of age discrimination is accepted), in Growing Old in America 257, 270-73 (Beth B. Hess & Elizabeth W. Markson eds., 1991);
2. Benson Rosen & Thomas H. Jerdee, Older Employees: New Roles for Valued Resources 35-36 (1985) (finding that managers consistently rated otherwise identical older and younger workers differently). The number of ADEA charges filed with the EEOC also provides some measure of the incidence of age discrimination.
3. U.S. Gen. Accounting Office, EEOC's Expanding Workload: Increases in Age Discrimination and Other Charges Call for a New Approach 10 (1994) (reporting that the EEOC received 19, 880 ADEA charges in 1993).
4. See U.S. Dep't of Labor, The Older American Worker: Age Discrimination in Employment 5 (1965)
5. [hereinafter Secretary's Report],
6. reprinted in EEOC, Legislative History of the Age Discrimination in Employment Act 19, 22 (1981)
7. [hereinafter Legislative History].
8. V. Jane Knox et al., The Age Group Evaluation and Description (AGED) Inventory: A New Instrument for Assessing Stereotypes of and Attitudes Towards Age Groups, 40 Int'l J. Aging & Hum. Dev. 31, 35, 44 (1995) (proposing new assessment tool to measure attitudes and stereotypes about age and reporting that perceived vitality and positiveness decrease with age);
9. Mary E. Kite & Blair T. Johnson, Attitudes Towards Older and Younger Adults: A Meta-Analysis, 3 Psychol. & Aging 233, 240 (1988) (finding relatively negative attitudes, particularly concerning competence, toward older workers).
10. Glenn M. McEvoy & Wayne F. Cascio, Cumulative Evidence of the Relationship Between Employee Age and Job Performance, 74 J. Applied Psychol. 11, 14 (1989) (concluding age and job performance generally unrelated);
11. David A. Waldman & Bruce J. Avolio, A Meta-Analysis of Age Differences in Job Performance, 71 J. Applied Psychol. 33, 36 (1986) (finding widespread belief that productivity declines with age unsupported by objective evidence).
12. More-objective productivity indices show performance may increase with age (perhaps as a result of increases in experience and judgment) whereas indices based on supervisory ratings show a small decline in performance with age, perhaps reflecting rater bias. David A. Waldman & Bruce J. Avolio, A Meta-Analysis of Age Differences in Job Performance, 71 J. Applied Psychol. Id. 33, (1986)
13. AARP, Valuing Older Workers: A Study of Costs and Productivity 34 (1995) (reporting that job performance at all ages varies by individual more than by age group); Waldman & Avolio, supra note 4, at 37 (concluding that chronological age cannot account for significant differences between individual's job performance).
14. Pub. L. No. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. §§ 621-634 (1994)). For a detailed discussion of the provisions of the ADEA, see infra notes 18-23 and accompanying text.
15. See 29 U.S.C. § 621(b) (requiring that employers "promote employment of older persons based on their ability rather than age"); 113 Cong. Rec. 34,747 (remarks of Rep. Dent) ("The bill recognizes two distinct types of unfair discrimination based on age: First, the discrimination which is the result of misunderstanding of the relationship of age to usefulness; and second, the discrimination which is a result of a deliberate disregard of a worker's value solely because of age."); see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (stating that Congress passed ADEA due to concern "that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes").
16. See infra note 95. For clarity, this Comment focuses on actions based on salary although salary or wage is just one component of worker compensation. U.S. Dept. of Labor, Employer Costs for Employee Compensation: March 1993, 45 Compensation & Working Conditions 1 (1993). Salary or wage is the largest component of compensation, representing 71.3% of total compensation. Id. at 21.
17. 507 U.S. 604 (1993).
18. Id. at 610-11.
19. Id. at 611-12.
20. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
21. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
22. See infra notes 15-18 and accompanying text.
23. 110 Cong. Rec. 2596-99, 9911-13, 13490-92 (1964), reprinted in Legislative History, supra note 2, at 5-14.
24. Civil Rights Act of 1964, Pub. L. No. 88-352, § 715, 78 Stat. 287, 316 (superseded by the Equal Employment Opportunity Act of 1972, Pub L. No. 92-261 § 10, 86 Stat. 111, 132).
25. Pub. L. No. 90-202, 81 Stat. 602 (1967) (codified as amended at 29 U.S.C. §§ 621-634 (1994)).
26. Compare 29 U.S.C. § 623(a) with 42 U.S.C. § 2000e-2(a).
27. 29 U.S.C. § 623(f). The ADEA exempts decisions based on age where age is a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of the particular business." § 623(f)(1). Moreover, the ADEA protects good-cause discharges and disciplinary actions, bona fide seniority systems, and benefit plans. § 623(f)(2)-(3).
28. § 623(f)(1).
29. See Secretary's Report, supra note 2, at 5 (concluding that age discrimination existed but stemmed from stereotypes about older workers rather than from animus or intolerance),
30. reprinted in Legislative History, supra note 2, at 22; 113 Cong. Rec. 34,742 (remarks of Rep. Burke) ("[Age discrimination] arises . . . because of assumptions that are made about the effects of age on performance"),
31. reprinted in Legislative History, supra note 2, at 153.
32. See Terrence P. Collingsworth, Comment, The Cost Defense Under the Age Discrimination in Employment Act, 1982 Duke L.J. 580, 584-93 (discussing ADEA legislative history regarding cost issues).
33. 29 U.S.C. § 623(f)(2)(B) (allowing employers "to observe the terms of a bona fide employee benefit plan where, for each benefit or benefit package, the actual amount of payment made or cost incurred on behalf of an older worker is no less than that made or incurred on behalf of a younger worker").
34. See, e.g., Lorillard v. Pons, 434 U.S. 575, 584 (1978) ("There are important similarities between the two statutes, to be sure, both in their aims - the elimination of discrimination from the workplace - and in their substantive prohibitions. In fact, the prohibitions of the ADEA were derived in haec verba from Title VII.").
35. "Disparate treatment occurs when an employee is treated less favorably simply because of race, color, sex, national origin, or in our case, age. This is the most obvious form of discrimination. To be successful on this type of claim, proof of discriminatory motive is critical." EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1076 (7th Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995)
36. TWA v. Thurston, 469 U.S. 111, 121 (1985).
37. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (establishing three-step, burden shifting test to evaluate circumstantial evidence of intentional discrimination).
38. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (clarifying that second step of McDonnell Douglas test shifts burden of production to defendant to articulate legitimate, non-discriminatory reason for adverse employment action).
39. See Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir. 1985) ("The vast majority of cases that have discussed the appropriate burdens and standards for action under the ADEA have adopted the analysis set forth in McDonnell Douglas Corp. v. Green, a race discrimination case.") (citation omitted); Laugesen v. Anaconda Co., 510 F.2d 307, 311-13 (6th Cir. 1975) (noting similarity between Title VII and ADEA and applying McDonnell Douglas framework to ADEA case but cautioning that framework should not be applied automatically without regard for differences between statutes). The U.S. Supreme Court recently noted: In assessing claims of age discrimination brought under the ADEA, [lower courts have] applied some variant of the basic evidentiary framework set forth in McDonnell Douglas. We have never had occasion to decide whether that application of the Title VII rule to the ADEA context is correct, but since the parties do not contest that point, we shall assume it." O'Connor v. Consolidated Coin Caterers, 116 S. Ct. 1307 (1996).
40. See, e.g., Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1122 (7th Cir. 1994); Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1421-22 (10th Cir. 1991).
41. Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
42. For example, a prima facie demonstration that the plaintiff was qualified for the position shows, at least preliminarily, that the plaintiff was not rejected because he or she was unqualified. McDonnell Douglas, 411 U.S. at 802.
43. Id. This burden has been a major battleground in employment discrimination law. Compare Wards Cove Packing v. Atonio, 490 U.S. 642 (1989) with Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074 (codified as amended at 42 U.S.C. § 2000e-2(k)).
44. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 507-08(1993); Burdine, 450 U.S. at 256; McDonnell Douglas, 411 U.S. at 804-05.
45. Hicks, 509 U.S. at 511; see Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229 (1995).
46. Because salary correlates with age, most courts analyze employment actions based on salary as "disparate treatment" cases based on age, not as cases involving facially neutral polices and practices that have a "disparate impact" on older workers. Steven J. Kaminshine, The Cost of Older Workers, Disparate Impact, and the Age Discrimination in Employment Act, 42 Fla. L. Rev. 229, 272-73 (1990); infra note 97 and accompanying text.
47. See, e.g., Houghton v. SIPCO, Inc., 38 F.3d 953, 958-59 (8th Cir. 1994); Geller v. Markham, 635 F.2d 1027, 1032 (2d Cir. 1980), cert. denied, 451 U.S. 945 (1981).
48. EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1076 (7th. Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995). The theory originated in Griggs v. Duke Power Co., 401 U.S. 424 (1971), a Title VII case, and was codified as an amendment to Title VII by the Civil Rights Act of 1991 (CRA), Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074 (codified as amended at 42 U.S.C. § 2000e-2(k)). For a thorough review of the impact of the CRA on the ADEA, see Howard Eglit, The Age Discrimination in Employment Act. Title VII, and the Civil Rights Act of 1991: Three Acts and a Dog Thai Didn't Bark, 39 Wayne L. Rev. 1093 (1993).
49. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993). The academic community has hotly debated whether disparate impact claims are cognizable under the ADEA. Compare Pamela S. Krop, Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan. L. Rev. 837 (1982) (arguing that disparate impact theory is inapplicable under ADEA)
50. and Evan H. Pontz, Comment, What a Difference ADEA Makes: Why Disparate Impact Theory Should Not Apply to the Age Discrimination in Employment Act, 74 N.C. L. Rev. 267 (1995) (same)
51. with Maria Ziegler, Note, Disparate Impact Analysis and the Age Discrimination in Employment Act, 68 Minn. L. Rev. 1038 (1984) (arguing that disparate impact claims are cognizable under ADEA).
52. See, e.g. Ellis v. United Airlines, 73 F.3d 999, 1009 (10th Cir. 1996); DiBiase v. SmithKline Beecham Corp, 48 F.3d 719, 731 (3d Cir. 1995), cert. denied, 116 S. Ct. 306 (1995).
53. See Collingsworth, supra note 22, at 581 (stating that ADEA cases involving costs are contradictory); Note, The Cost of Growing Old: Business Necessity and the Age Discrimination in Employment Act, 88 Yale L.J. 565, 574-87 (1979) (reviewing cases decided before 1979 and noting disagreement regarding whether higher "direct" costs of older workers constitute legitimate grounds for discharge).
54. Michael Useem, Business Restructuring and the Aging Workforce (discussing weight of economic factors, such as business downturns, in downsizing decisions), in Aging and Competition: Rebuilding the U.S. Workforce 33, 35-38 (James A. Auerbach & Joyce C. Welsh eds., 1994).
55. See, e.g., Leichihman v. Pickwick Int'l, 814 F.2d 1263 (8th Cir.), cert. denied, 484 U.S. 855 (1987); Mauter v. Hardy Corp., 825 F.2d 1554 (11th Cir. 1987); Chappell v. GTE Prods., 803 F.2d 261 (6th Cir. 1986), cert. denied, 480 U.S. 919 (1987).
56. See, e.g., Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th Cir. 1985). The defendant's millshop was a losing financial proposition, so the defendant fired Tice, the employee who did the majority of the millshop's work. Id. at 1216-17 & n.11. The employer's financial distress was real, and Tice's termination was consistent with this distress. Id.; see also Franci v. Avco Corp., 538 F. Supp. 250, 259 (D. Conn. 1982) ("The ADEA does not preclude a business decision such as defendant's; it does preclude, however, using age as a criterion in realizing that legitimate business goal.").
57. See U.S. Bureau of the Census. How Much We Earn - Factors that Make a Difference, 17 Stat. Brief 1 (1995) (discussing correlation between age and earnings);
58. Phillip L. Rones, Employment, Earnings and Unemployment Characteristics of Older Workers (finding that career peak earnings generally maintained until age of 65, when age group aggregates fall because older workers work less), in The Older Worker 21, 36 (Michael E. Borus et al. eds., 1988);
59. cf. Boyd Black, Age and Earnings (reviewing relationship between age and salary in Britain), in A Portrait of Pay. 1970-1982, at 274 (Mary B. Gregory & Andrew W.J. Thomson eds., 1990).
60. 507 U.S. 604 (1993).
61. See, e.g. Marshall v. Arlene Knitwear, 454 F. Supp. 715 (E.D.N.Y. 1978) (finding that economic savings in form of salary and unpaid pension benefits were insufficient justifications to terminate plaintiff, because these savings were "directly" related to plaintiff's age). Marshall's salary was higher than the salary of her younger coworkers because she had received more seniority raises over her longer tenure with the company. Id. at 728.
62. See, e.g., Metz v. Transit Mix, Inc., 828 F.2d 1202, 1208 (7th Cir. 1987).
63. Id.
64. See. e.g., Mastie v. Great Lakes Steel, 424 F. Supp. 1299, 1319 (E.D. Mich. 1976) (concluding that ADEA regulations permitted "an employer to consider employment costs where such consideration is predicated upon an individual as opposed to a general assessment that the older worker's cost of employment is greater than for other workers").
65. 635 F.2d 1027 (2d Cir. 1980).
66. Id. at 1034-35. The plaintiff was a 55 year-old teacher hired for a position, but shortly thereafter replaced by a younger woman with less experience who qualified for a lower salary. Id. at 1029-30.
67. Id. at 1033.
68. Id. at 1034.
69. Id.
70. 702 F.2d 686 (8th Cir. 1983).
71. Id. at 691.
72. Id. at 689. The Board of Regents' education consultant told the plaintiff that he was a "victim of tenure density." Id. at 690.
73. Id. at 691.
74. Id. at 691-92.
75. Id. at 692.
76. 828 F.2d 1202 (7th Cir. 1987).
77. Id. at 1205-06; see also Graefenhain v. Pabst Brewing Co. 827 F.2d 13, 21 (7th Cir. 1987) (finding defendant's alleged reason - economic cutbacks - pretextual where defendant refused plaintiff's offer to take another, lower paying job).
78. 828 F.2d at 1203-04.
79. Id. at 1204.
80. Id.
81. Id. at 1210.
82. See. e.g., Gelof v. Papineau, 648 F. Supp. 912 (D. Del. 1986) (finding for older worker fired because his salary exceeded that available in defendant's reorganized budget and citing Geller, Leftwich, Arlene Knitwear, and other leading cases for proposition that salary discrimination is age discrimination), vacated in part, 829 F.2d 452 (3d Cir. 1987); Wing v. Iowa Lutheran Hosp., 426 N.W.2d 175, 180 (Iowa Ct. App. 1988) (citing Leftwich for proposition that "[e]conomic savings derived, from discharging older employees cannot serve as a legitimate justification under the ADEA").
83. See, e.g., Gray v. York Newspapers, 957 F.2d 1070, 1087 (3d Cir. 1992) (dismissing plaintiff's salary-based argument because replacement worker with less seniority was not significantly younger than plaintiff).
84. 797 F.2d 36 (1st Cir. 1986).
85. Id. at 38.
86. See Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1421-22 (10th Cir. 1991) (affirming jury verdict based on evidence that employer considered cost of older workers in choosing which workers to retain); Branson v. Price River Coal, 627 F. Supp. 1324 (D. Utah 1986) (noting inconclusive figures regarding cost savings realized by discharging older workers and concluding that theory based on these savings mere speculation), aff'd, 853 F.2d 768 (10th Cir. 1988).
87. See Hamilton v. Grocers Supply, 986 F.2d 97, 99 (5th Cir. 1993) (declining to follow Metz), cert. denied, 114 S. Ct. 77 (1993); Amburgey v. Corhart Refractories Corp., 936 F.2d 805 (5th Cir. 1991) (affirming summary judgment for defendant and finding plaintiff's assertions that he was fired on basis of his seniority irrelevant to age discrimination claim); Williams v. General Motors, 656 F.2d 120, 130 n.17 (5th Cir. Unit B 1981) ("Seniority and age discrimination are unrelated."), cert. denied, 455 U.S. 943 (1982).
88. See EEOC v. Chrysler Corp., 733 F.2d 1183 (6th Cir. 1984) (allowing cost justifications that meet two-part test that considers necessity of drastic cost reductions and less detrimental, alternative measures); Murray v. Sears, Roebuck & Co., 722 F. Supp. 1500, 1505 (N.D. Ohio 1989) (finding defendant's "desire to save $10 per in salary for the . . . position is clearly a sound business reason," and stating that "natural aging process in any work force" prevents all but limited inference from fact of replacement by younger, cheaper worker). But see Lenz v. Erdmann Corp., 773 F.2d 62 (6th Cir. 1985) (reversing summary judgment on evidence that employer in financial difficulty attempted to terminate older, higher paid employees and other evidence of pretext).
89. 507 U.S. 604 (1993).
90. Id. at 610.
91. See Reyher v. Champion Int'l, 975 F.2d 483, 487 (8th Cir. 1992) (holding that jury could reasonably infer that plaintiff's demotion was motivated by employer's discriminatory desire to reduce pension costs by firing and demoting older workers); White v. Westinghouse Elec., 862 F.2d 56, 62 (3d Cir. 1988) (reversing summary judgment for employer and remanding case to consider whether Westinghouse timed discharge to avoid paying additional pension benefits).
92. Biggins, 507 U.S. at 610.
93. Specifically, the action at issue was a termination based on pension status calculated according to years of service. Id. at 611.
94. Id.
95. Id.
96. See infra notes 83-94 and accompanying text.
97. 13 F.3d 1120 (7th Cir. 1994).
98. Id. at 1126 (quoting Metz v. Transit Mix, Inc., 828 F.2d 1202, 1212 (7th Cir. 1987) (Easterbrook, J., dissenting)).
99. 41 F.3d 1073 (7th Cir. 1994).
100. Id. at 1076 (rejecting plaintiff's age discrimination claims based on theories of both disparate treatment and disparate impact). The court cited Biggins, finding the Supreme Court's reasoning applicable to disparate impact cases, too. Id. at 1076-78.
101. See supra note 64 and accompanying text.
102. 41 F.3d at 1078 (Cudahy, J., dissenting).
103. See Bialas v. Greyhound Lines, 59 F.3d 759, 763 (8th Cir. 1995) (affirming summary judgment for defendant and holding that evidence that defendant terminated plaintiff to save salary costs does not support inference of age discrimination); Woroski v. Nashua Corp., 31 F.3d 105, 110 n.2 (2d Cir. 1994) ("The ADEA does not prohibit an employer from acting out of concern for excessive costs, even if they arise from age-related facts - such as that employees with long seniority command a higher salary . . . ."); Tipsword v. Oglivy & Mather, Inc., 918 F. Supp. 217 (N.D. Ill. 1996) (granting defendant's motion for summary judgment and finding that defendant's desire to save relatively high salary costs of the plaintiff whose responsibilities could be handled by subordinates sufficient). But see Radabaugh v. Zip Feed Mills, 997 F.2d 444, 449 (8th Cir. 1993) (holding that plaintiff presented sufficient evidence to allow reasonable fact finder to find that age discrimination motivated decision to discharge plaintiff rather than younger, lower paid employee).
104. 855 F. Supp. 459 (D. Mass.), aff'd, 37 F.3d 1484 (1st Cir. 1994).
105. Id. at 462.
106. Id.
107. Id.
108. Shibursky v. IBM, 820 F. Supp. 1169, 1177 (D. Minn. 1993); accord Slathar v. Sather Trucking Corp., 78 F.3d 415, 418 (8th Cir. 1996); Phillips v. Lehigh Valley Ass'n of Rehabilitation Ctrs., 66 Fair Empl. Prac. Cas. (BNA) 1676, 1680 (E.D. Pa. 1995) (stating that, as matter of law, the ADEA precludes claims based on salary since Biggins disaffirmed Metz).
109. Early v. Bankers Life & Casualty, 65 F.3d 170 (7th Cir. 1995); Woroski v. Nashua Corp., 31 F.3d 105 (2d Cir. 1994); Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir. 1994), cert. denied, 115 S. Ct. 1104 (1995); Serben v. Inter-City Mfg., 36 F.3d 765 (8th Cir. 1994), cert. denied, 115 S. Ct. 1402 (1995); Phelps v. Yale Security, Inc., 986 F.2d 1020 (6th Cir.), cert. denied, 114 S. Ct. 175 (1993); DiCola v. Swissre Holding, 996 F.2d 30 (2d Cir. 1993); Radabaugh v. Zip Feed Mills, 997 F.2d 444 (8th Cir. 1993); Doyne v. Union Elec., 953 F.2d 447 (8th Cir. 1992); Gray v. York Newspapers, 957 F.2d 1070 (3d Cir. 1992); EEOC v. Clay Printing Co., 955 F.2d 936 (4th Cir. 1992); Bay v. Times
110. The following 54 cases involved terminations:
111. But see EEOC v. Francis W. Parker Sch., 61 Fair Empl. Prac. Cas. (BNA) 967 (reviewing charges under both disparate impact and disparate treatment theories), aff'd, 41 F.3d 1073 (7th Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995); Holt v. Gamewell Corp., 797 F.2d 36 (1st Cir. 1986).
112. But see, e.g., Serben v. Inter-City Mfg., 36 F.3d 765 (8th Cir. 1994), cert. denied, 115 S. Ct. 1402 (1995); Radabaugh v. Zip Feed Mills, 997 F.2d 444 (8th Cir. 1993); Doyne v. Union Elec., 953 F.2d 447 (8th Cir. 1992); Rivas v. Federacion de Asociaciones Pecurarias, 929 F.2d 814 (1st Cir. 1991); EEOC v. Atlantic Community Sch. Dist., 879 F.2d 434 (8th Cir. 1989); Gilliam v. Armtex, Inc., 820 F.2d 1387 (4th Cir. 1987).
113. The plaintiff presented a prima facie case, the defendant rebutted this charge with a legitimate, non-discriminatory reason for the action, and then the plaintiff introduced the salary-age argument in an attempt to expose the defendant's reason as pretext for discrimination. In a number of cases, the court reviewed this evidence as part of the plaintiff's prima facie case. Generally, this occurred in reduction-in-force (RIF) cases in which courts require additional evidence of age discrimination as an element of the prima facie case, instead of the more typical requirement of evidence of replacement (by a younger worker) in non-RIF cases.
114. The term "minuet" has been used to describe the carefully choreographed, burden-shifting steps of McDonnell Douglas/ Burdine test. Malamud, supra note 35, at 2232 & n. 16.
115. 828 F.2d 1202 (7th Cir. 1987).
116. 702 F.2d 686 (8th Cir. 1983).
117. 635 F.2d 1027 (2d Cir. 1980).
118. Defendants won 47 of 66 cases listed supra note 95.
119. Early v. Bankers Life & Casualty, 65 F.3d 170 (7th Cir. 1995); Woroski v. Nashua Corp., 31 F.3d 105 (2d Cir. 1994); Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir. 1994), cert. denied, 115 S. Ct. 1104 (1995); DiCola v. Swissre Holding, 996 F.2d 30 (2d Cir. 1993); EEOC v. Clay Printing Co., 955 F.2d 936 (4th Cir. 1992); Gray v. York Newspapers, 957 F.2d 1070 (3d Cir. 1992); Bay v. Times Mirror Magazine, 936 F.2d 112 (2d Cir. 1991); Rivas v. Federacion de Asociaciones Pecurarias, 929 F.2d 814 (1st Cir. 1991); Baker v. Sears, Roebuck & Co., 903 F.2d 1515 (11th Cir. 1990); Montana v. First Fed. Sav. & Loan, 869 F.2d 100 (2d Cir. 1989); Holt v. Gamewell Corp., 797 F.2d 36 (1st Cir. 1986); Lenz v. Erdmann Corp., 773 F.2d 62 (6th Cir. 1985); Phillips v. Lehigh Valley Ass'n of Rehabilitation Ctrs., 66 Fair Empl. Prac. Cas. (BNA) 1676 (E.D. Pa. 1995); Armbruster v. Unisys Corp., 62 Fair Empl. Prac. Cas. (BNA) 395 (E.D. Pa. 1993), rev'd, 32 F.3d 768 (3d Cir. 1994); Nabat v. Aetna Casualty & Sur., 64 Fair Empl. Prac. Cas. (BNA) 1774 (N.D. Ill 1993), aff'd, 45 F.3d 432 (7th Cir. 1995); Schibursky v. IBM, 820 F. Supp. 1169 (D. Minn. 1993); Meeker v. Unisys Corp., 65 Fair Empl. Prac. Cas. (BNA) 950 (N.D. Ga. 1993), vacated and appeal dismissed, 65 Fair Empl. Prac. Cas. (BNA) 1344 (11th Cir. 1994); EEOC v. MCI Int'l Inc., 829 F. Supp. 1438 (D.N.J. 1993); Frankina v. First Nat'l Bank, 801 F. Supp. 875 (D. Mass. 1992), aff'd, 991 F.2d 786 (1st Cir. 1993); Goldman v. First Nat'l Bank, 59 Fair Empl. Prac. Cas. (BNA) 204 (D. Mass. 1992), aff'd, 985 F.2d 1113 (1st Cir. 1993); Pagliarini v. General Instrument Corp., 855 F. Supp. 459 (D. Mass. 1991); Nelson v. Kennicott Bros., 58 Fair Empl. Prac. Cas. (BNA) 187 (E.D. Wis. 1990), aff'd, 951 F.2d 352 (7th Cir. 1991); Murray v. Sears, Roebuck & Co., 722 F. Supp. 1500 (N.D. Ohio 1989); Kilgore v. Sears, Roebuck & Co., 722 F. Supp. 1535 (N.D. Ill 1989); Bedow v. Valley Nat'l Bank, 755 F. Supp. 276 (D. Ariz. 1989); Wilson v. Popp Yarn Corp., 680 F. Supp. 208 (W.D.N.C. 1988); Schweizer v. Strippit/Di-Arco-Houdaille, 44 Fair Empl. Prac. Cas. (BNA) 1894 (W.D.N.Y. 1987); Branson v. Price River Coal Co., 627 F. Supp. 1324 (D. Utah 1986); Husbands v. Econo Therm Energy Sys., 650 F. Supp. 294 (D. Minn. 1986); Chipollini v. Spencer Gifts, Inc., 613 F. Supp. 1156 (D.N.J. 1985), rev'd, 814 F.2d 893 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987); Mantione v. Ted Bates Advertising, 38 Fair Empl. Prac. Cas. (BNA) 1457 (S.D.N.Y. 1985); Pfeifer v. Lever Bros., 693 F. Supp. 358 (D. Md. 1987), aff'd, 850 F.2d 689 (4th Cir. 1988). These results may correspond with a more general, yet likewise pronounced, increase in the use of summary judgment in ADEA and other contexts. See Robert J. Gregory, There is Life in That Old (I Mean More Senior) Dog Yet: The Age Proxy Theory After Hazen Paper Co. v. Biggins, 11 Hofstra Lab. L.J. 391, 425 (1994) (discussing "near-explosion in the use of summary judgment").
120. Phelps v. Yale Security, Inc., 986 F.2d 1020 (6th Cir.) (judgment notwithstanding verdict (JNOV) for defendant, voiding jury verdict for plaintiff), cert. denied, 114 S. Ct. 175 (1993); EEOC v. Atlantic Community Sch. Dist., 879 F.2d 434 (8th Cir. 1989) (judgment on verdict for defendant); Walker v. St. Anthony's Medical Ctr., 881 F.2d 554 (8th Cir. 1989) (judgment on verdict for defendant); Bhaya v. Westinghouse Elec., 832 F.2d 258 (3d Cir. 1987) (voiding jury verdict for plaintiff with JNOV for defendant), cert. denied, 488 U.S. 1004 (1989); Gray v. New England Tel. & Telegraph, 792 F.2d 251 (1st Cir. 1986) (JMAL for defendant); Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th Cir. 1985) (JNOV for defendant); LaMontagne v. American Convenience Prod., 750 F.2d 1405 (7th Cir. 1984) (JNOV for defendant); Nerenstone v. Barr, 784 F. Supp. 912 (D.D.C. 1992) (judgment for defendant after bench trial); Florkowski v. First Pa. Bank, 57 Fair Empl. Prac. Cas. (BNA) 1536 (E.D. Pa. 1991) (JMAL for defendant); Latimore v. President, 669 F. Supp. 1345 (W.D.N.C. 1987) (JMAL for defendant), aff'd in part, 856 F.2d 186 (4th Cir. 1988); Metz v. Transit Mix Inc., 646 F. Supp. 286 (N.D. Ill 1986), rev'd, 828 F.2d 1202 (7th Cir. 1987) (judgment for defendant); Gang v. N.L. Indus., Inc., 671 F. Supp. 1460 (S.D. Tex. 1985) (judgment for defendant), aff'd, 792 F.2d 1120 (5th Cir. 1986); Graefenhain v. Pabst Brewing Co., 620 F. Supp. 696 (E.D. Wis. 1985), rev'd, 827 F.2d 13 (7th Cir. 1987) (voiding verdict for plaintiff with JNOV for defendant); Cope v. McPherson, 594 F. Supp. 171 (D.D.C. 1984) (judgment for defendant after bench trial), aff'd, 781 F.2d 207 (D.C. Cir. 1986).
121. Serben v. Inter-City Mfg., 36 F.3d 765 (8th Cir. 1994), cert. denied, 115 S. Ct. 1402 (1995); Radabaugh v. Zip Feed Mills, 997 F.2d 444 (8th Cir. 1993); Doyne v. Union Elec., 953 F.2d 447 (8th Cir. 1992); Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991); Bruno v. W.B. Saunders Co., 882 F.2d 760 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990); EEOC v. Sperry Corp., 852 F.2d 503 (10th Cir. 1988); Gilliam v. Armtex, Inc., 820 F.2d 1387 (4th Cir. 1987); Reynolds v. C.L.P. Corp., 812 F.2d 671 (11th Cir. 1987); Bonura v. Chase Manhattan Bank, 795 F.2d 276 (2d Cir. 1986); Gelof v. Papineau, 648 F. Supp. 912 (D. Del. 1986); Holley v. Sanyo Mfg., 771 F.2d 1161 (8th Cir. 1985); Kaczor v. City of Buffalo, 657 F. Supp. 441 (W.D.N.Y. 1987).
122. Affirming dispositions in favor of the defendant: Bolton v. Scrivner, Inc., 36 F.3d 939 (10th Cir. 1994), cert. denied, 115 S. Ct. 1104 (1995); DiCola v. Swissre Holding, 996 F.2d 30 (2d Cir. 1993); Phelps v. Yale Security, Inc., 986 F.2d 1020 (6th Cir. 1993), cert. denied, 114 S. Ct. 175 (1993); Gray v. York Newspapers, 957 F.2d 1070 (3d Cir. 1992); Rivas v. Federacion de Asociaciones Pecurarias, 929 F.2d 814 (1st Cir. 1991); Bay v. Times Mirror Magazine, 936 F.2d 112 (2d Cir. 1991); Baker v. Sears, Roebuck & Co., 903 F.2d 1515 (11th Cir. 1990); Walker v. St. Anthony's Medical Ctr., 881 F.2d 554 (8th Cir. 1989); EEOC v. Atlantic Community Sch. Dist., 879 F.2d 434 (8th Cir. 1989); Gray v. New England Tel. & Tel., 792 F.2d 251 (1st Cir. 1986); Holt v. Gamewell Corp., 797 F.2d 36 (1st Cir. 1986); Tice v. Lampert Yards, Inc., 761 F.2d 1210 (7th Cir. 1985); La Montagne v. American Convenience Prod., 750 F.2d 1405 (7th Cir. 1984); Goldman v. First Nat'l Bank, 59 Fair Empl. Prac. Cas. (BNA) 204 (D. Mass. 1992), aff'd, 985 F.2d 1113 (1st Cir. 1993). Affirming pro-plaintiff dispositions: Radabaugh v. Zip Feed Mills, 997 F.2d 444 (8th Cir. 1993); Doyne v. Union Elec., 953 F.2d 447 (8th Cir. 1992); Denison v. Swaco Geolograph Co., 941 F.2d 1416 (10th Cir. 1991); Bruno v. W.B. Saunders Co., 882 F.2d 760 (3d Cir. 1989), cert. denied, 493 U.S. 1062 (1990); Gilliam v. Armtex, Inc., 820 F.2d 1387 (4th Cir. 1987); Reynolds v. C.L.P. Corp., 812 F.2d 671 (11th Cir. 1987); Bonura v. Chase Manhattan Bank, 795 F.2d 276 (2d Cir. 1986); Reynolds v. C.L.P. Corp., 812 F.2d 671 (11th Cir. 1987).
123. See. e.g., Radabaugh v. Zip Feed Mills, 997 F.2d 444, 449 (8th Cir. 1993); Bolton v. Scrivner, Inc., 36 F.3d 939, 944-45 (10th Cir. 1994) (finding that age-related comments by plaintiff's supervisor, including calling plaintiff "old fart," did not raise inference of pretext), cert. denied, 115 S. Ct. 1104 (1995).
124. See. e.g., Woroski v. Nashua Corp., 31 F.3d 105, 110 (2d Cir. 1994) (noting existence of cost cutting policy plus statements by general manager regarding dissatisfaction with older workers who received high salaries and generous benefits); Buttell v. American Podiatric Medical Ass'n, 700 F. Supp. 592, 597 (D.D.C. 1988) (finding documentation of defendant's saving as result of termination and evidence that this documentation was altered); see also Pfeifer v. Lever Bros. Co., 693 F. Supp. 358 (D. Md. 1987) (identifying cost savings as most common reason underlying age discrimination), aff'd, 850 F.2d 689 (4th Cir. 1988).
125. Kaczor v. City of Buffalo, 657 F. Supp. 441, 445 (W.D.N.Y. 1987).
126. Armbruster v. Unisys Corp., 32 F.3d 768, 775 (3d Cir. 1994).
127. Wilson v. Popp Yarn Corp., 680 F. Supp. 208, 212 (W.D.N.C. 1988).
128. EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1076 (7th Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995); Diamantopulos v. Brookside Corp., 683 F. Supp. 322, 326 (D. Conn. 1988).
129. But see. e.g., Doyne v. Union Elec., 953 F.2d 447, 449 (8th Cir. 1992) ("[T]he only alternative given to [plaintiff] was retirement."); Metz v. Transit Mix, Inc., 828 F.2d 1202, 1203-04 (7th Cir. 1987); Gilliam v. Armtex, Inc., 820 F.2d 1387 (4th Cir. 1987).
130. DiCola v. Swissre Holding, 996 F.2d 30, 32 (2d Cir. 1993) (accepting without further questioning that higher salary no longer "economically justifiable"); Diamantopulos, 683 F. Supp. at 326 (noting that defendant was not aware of the plaintiff's willingness to accept available salary when he interviewed for position and concluding, without further analysis, that "[defendant's failure to inquire as to whether the plaintiff would accept the position at that salary cannot be said to be unreasonable"). In cases in which the plaintiff had forced the issue by unilaterally offering to work for less, this evidence was not consistently held to undercut the employer's salary justification. See, e.g., EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1076 (7th Cir. 1994), cert. denied, 115 S. Ct. 2577 (1995); Graefenhain v. Pabst Brewing Co. 827 F.2d 13 (7th Cir. 1987).
131. The employer should be required to present evidence to explain this shift. For example, evidence of market changes, changes in job requirements, or altered employer goals could counter this presumption.
132. Early v. Bankers Life & Casualty, 65 F.3d 170 (7th Cir. 1995); see also Robert H. Faley et al., Age Discrimination and Personnel Psychology: A Review of the Legal Literature with Implications for Future Research, 37 Personnel Psychol. 327, 342 (1984) (questioning business sense of decision to retain lower over higher paid employees without consideration of their work performance where such decision could result in inferior work force).
133. Pagliarini v. General Instrument Corp., 855 F. Supp. 459, 464 (D. Mass. 1991); Murray v. Sears, Roebuck & Co., 722 F. Supp. 1500, 1505 (N.D. Ohio 1989). Whether over-qualification can ever constitute a legitimate, non-discriminatory reason for an employment action is debatable. See Taggart v. Time, 924 F.2d 43 (2d Cir. 1991) (holding that reasonable juror could infer age discrimination from defendant's proffered reason of over-qualification); EEOC v. District of Columbia Dep't of Human Servs., 729 F. Supp. 907, 913 (D.D.C. 1990) ("Indeed, the very term 'over qualified and over specialized' is almost a buzzword for 'too old.'"), vacated, 925 F.2d 488 (D.C. Cir. 1991).
134. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610-11 (1993).
135. AARP, supra note 5, at 33.
136. 936 F.2d 112 (2d Cir. 1991).
137. Id. at 117.
138. See supra note 7.
139. See Peter H. Harris, Age Discrimination. Wages and Economics: What Judicial Standard, 13 Harv. J.L. & Pub. Pol'y 715, 756 (1990) ("[O]lder workers must be given a 'right of first refusal' on their jobs at the level of compensation determined by economic considerations . . . so long as their jobs continue to exist and they are qualified to perform them."); Note, supra note 41, at 588-92 (recommending that employers be required to prove substantial cost burden and consider wage reductions, or other less detrimental alternatives, before discharging older workers with high "direct" costs).
140. Gilliam v. Armtex Inc., 820 F.2d 1387 (4th Cir. 1987); Graefenhain v. Pabst Brewing Co. 827 F.2d 13 (7th Cir. 1987); Metz v. Transit Mix, Inc., 828 F.2d 1202, 1203-04 (7th Cir. 1987).
141. Serben v. Inter-City Mfg., 36 F.3d 765 (8th Cir. 1994), cert. denied, 115 S. Ct. 1402 (1995); EEOC v. Newport Mesa Unified Sch. Dist., 893 F. Supp. 927 (C.D. Cal 1995).
142. U.S. Dep't of Labor, Union Members in 1994 (Feb. 8, 1995) ("About 16.7 million wage and salary employees, 15.5 percent of total employment, were union members in 1994.")
143. (on file with the Washington Law Review).
144. "It shall be unlawful for an employer . . . to reduce the wage rate of any employee in order to comply with this Act." 29 U.S.C. § 623(a).
145. Rivas v. Federacion de Asociaciones Pecurarias, 929 F.2d 814, 820 (1st Cir. 1991) ("[P]laintiffs' unwillingness to accept the decrease [in pay], even if motivated by their status as older and more experienced workers and an expectation of earning their former union wages for the exact same work, does not translate into age discrimination."). In Green v. Edward J. Bettinger Co., 608 F. Supp. 35, 42 (E.D. Pa. 1984), aff'd, 791 F.2d 917 (3d Cir. 1986), cert. denied, 479 U.S. 1069 (1987), the court stated: The employer's justification for the [wage reduction] - to maintain an appropriate relationship between Plaintiff's compensation and the results of her efforts, to rationalize the compensation schedule in light of the changed circumstances, to preserve the morale of similarly situated employees, and to head off a potential undeserved, windfall for Plaintiff, is eminently reasonable. Id.
146. Binderv. Long Island Lighting, 933 F.2d 187, 192 (2d Cir. 1991).
147. See Visser v. Packer Eng'g Assocs., 924 F.2d 655, 657 (7th Cir. 1991) (discussing impact of terminations because of pension status and noting that "[t]his is a shortsighted strategy, because it creates ill will among employees and forces the employer to pay new employees more in order to compensate them for the risk of falling victim to the strategy"). 133. Nerenstone v. Barr, 784 F. Supp. 912, 917 (D.D.C. 1992).
148. See Marshall v. Pyramid Life Ins., 52 Fair Empl. Prac. Cas. (BNA) 1398 (D. Kan. 1990) (denying defendant's motion for summary judgment on ADEA wage-discrimination claim; plaintiff paid less than other regional secretaries with less responsibility and experience).
149. See Collingsworth, supra note 22, at 599-600 (recommending that employers factor out wage differential between employees and instead consider relative productivity).
150. There is considerable danger of exploitation of older workers in this scenario, however. Workers will be negotiating with their employers as individuals knowing that the alternative to a wage reduction is termination. Considering the difficulty that older workers face securing alternate employment due to age discrimination as well as other labor market factors, these workers may well accept a wage less than their productivity should dictate. See Harris, supra note 125, at 754 (stating that requirement that employers offer wage reductions instead of termination, at least where replacement-worker market provides objective, reliable information regarding cost-productivity comparison, could enhance danger of wage exploitation; but concluding that danger is not unchecked).
151. See supra notes 121-23 and accompanying text.
152. 507 U.S. 604 (1993).
153. 828 F.2d 1202 (7th Cir. 1987).
154. 29 U.S.C. § 623(f)(1), (2)(A), (2)(B), 3.
155. The BFOQ defense is a narrow, strict defense available to employers with facially discriminatory policies, such as an age limit for certain jobs. See Western Airlines v. Criswell, 472 U.S. 400, 412 (1985). The "good cause" exception simply reaffirms that the ADEA does not protect older workers from non-discriminatory employment actions justified by usual business concerns. For an example of an RFOTA, see Marshall v. Goodyear Tire & Rubber, 22 Fair Empl. Prac. Cas. (BNA) 775 (W.D. Tenn 1979) (recognizing employee strength, dexterity, and stamina as RFOTA justifying dismissal).
156. 29 C.F.R. § 1625.7(d), (e) (1995) ("When the exception of 'a reasonable factor other than age' is raised against an individual treatment claim of discriminatory treatment, the employer bears the burden of showing that the 'reasonable factor other than age' exists factually."). However, if the claim raised is a disparate impact claim, then the regulations equate the 'reasonable factor other than age' standard with the Title VII business necessity standard. See EEOC v. Westinghouse Elec., 725 F.2d 211, 222 (3d Cir. 1983) ("[The defendant] bears the burden of going forward with evidence to demonstrate reasonable factors other than age justifying its action."), cert. denied, 464 U.S. 820 (1984); Criswell v. Western Airlines, 709 F.2d 544 (9th Cir. 1983), aff'd on other grounds, 472 U.S. 400 (1985); Howard Eglit, The Age Discrimination in Employment Act's Forgotten Affirmative Defense: The Reasonable Factor Other than Age Exception, 66 B.U. L. Rev. 155, 197 (1986) (concluding that RFOTA exception should be construed as affirmative defense).
157. See Michael D. Moberly, Reconsidering the Discriminatory Motive Requirement in ADEA Disparate Treatment Cases, 24 N.M. L. Rev. 89 (1994) (recognizing differences between Title VII and ADEA in terms of statutory language and purpose and arguing that courts should incorporate RFOTA exception into McDonnell Douglas/Burdine test).
158. Mack A. Player, Title VII Impact Analysis Applied to the Age Discrimination in Employment Act: Is a Transplant Appropriate?, 14 Toledo L. Rev. 1261, 1278 (1983) (arguing that factors that are inherently time-based such as tenure and experience cannot be factors other than age).
159. Hazen Paper Co. v. Biggins, 507 U.S. 604, 610-11 (1993).
160. Id.
161. Id.
162. Pregnancy Discrimination Act of 1978, Pub. L. No. 95-555, 92 Stat. 2076 (amending 42 U.S.C. § 2000e(k)).
163. General Elec. v. Gilbert, 429 U.S. 125 (1976).
164. Id. at 135.
165. Id. at 149.
166. Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy: Hearings on H.R. 5055 & H.R. 6075 Before the Subcomm. on Employment Opportunities of the House Comm. on Education and Labor, 95th Cong., 1st Sess. 1 (1977) (statement of Rep. Hawkins) ("In my view, such a prohibition [against pregnancy discrimination] was clearly intended in Title VII. Unfortunately, the Supreme Court in General Electric versus Gilbert and IUE decided otherwise this last December."); H.R. Rep. No. 948, 95th Cong., 2d Sess. 2-3 (1978) ("It is the committee's view that the dissenting Justices correctly interpreted the Act . . . . H.R. 6075 was introduced to change the definition of sex discrimination in Title VH to reflect the commonsense view.").
167. Consider the comments of Sen. Williams: "Such plans which have a negative impact on only one sex are, by definition, discriminatory." Discrimination on the Basis of Pregnancy, 1977: Hearings on S. 995 Before the Subcomm. on Labor of the Senate Comm. on Human Resources, 95th Cong, 1st Sess. 1 (1977) (remarks of Chairman Sen. Harrison A. Williams, Jr.).
168. See Secretary's Report, supra note 2, at 5,
169. reprinted in Legislative History, supra note 2, at 22.
170. Supra note 21.
171. Supra note 97 and accompanying text.