Semantic Cover for Age Discrimination: Twilight of the ADEA

73 Pages Posted: 2 Nov 2014

See all articles by Judith J. Johnson

Judith J. Johnson

Mississippi College - School of Law

Date Written: 1995


This Article examines the factors that have contributed to the current state of the law governing age discrimination in employment. One such factor is the Civil Rights Act of 1991, in which Congress expanded almost all rights protected by federal civil rights statutes. However, Congress failed to include the ADEA in the substantive changes made by the Civil Rights Act of 1991, leaving the ADEA at the mercy of the Supreme Court's less than generous pre-1991 employment discrimination decisions. These decisions include, most notably, Wards Cove Packing Co. v. Atonio. The Wards Cove decision, because it substantially limited a plaintiff's ability to prove a disparate impact case, became the single greatest impetus to the 1991 Civil Rights Act. The 1991 Act superseded Wards Cove for purposes of Title VII actions, but not specifically for the ADEA.

The Supreme Court's recent decision in Hazen Paper Co. v. Biggins further exacerbated the deleterious effect of Wards Cove on a plaintiff's ability to prove a claim under the ADEA. Before Hazen Paper, the majority of lower courts had determined that, in most cases, employers were discriminating intentionally based on age if they used unjustified age-correlated criteria such as seniority or high salary to make adverse employment decisions. Hazen Paper approved the use of an age-correlated criterion as a “factor other than age,” which the employee must prove as a pretext for discrimination. In most lower courts, plaintiffs still can prove that such age-correlated factors are discriminatory, using the disparate impact model of proof. However, in Hazen Paper some members of the Court expressed doubt whether the disparate impact theory applies at all in age discrimination cases. Indeed, a majority of the Court noted that the case did not involve disparate impact, and that the Court had not decided whether disparate impact applies to the ADEA.

Because Congress failed to apply the disparate impact provisions of the 1991 Civil Rights Act to the ADEA, the Supreme Court may be poised to go one step further than Hazen Paper and expressly rule that the ADEA does not countenance a disparate impact cause of action. The result of such a decision would be startling: employers could use unjustified age-correlated factors to rid their workforces of older employees. For example, an employer could eliminate all high salaried employees or all employees with more than ten years of service. The only limitation would be the employee's ability to show pretext, which would be a difficult task. Moreover, even if disparate impact does apply to the ADEA, proving a disparate impact will be more difficult because Congress failed to supersede Wards Cove in regard to ADEA actions.

A further complicating factor is the ADEA's defense of “reasonable factor other than age” (RFOA). Before Hazen Paper, a plaintiff could make a good argument that an age-correlated factor was not an RFOA, unless the employer could prove a reasonable basis for the use of such a factor. Although the Supreme Court did not explicitly mention the defense of RFOA in Hazen Paper, the decision leaves little room to interpret the RFOA defense as meaning anything except “any factor other than age.” Indeed, lower courts are interpreting Hazen Paper very broadly. Furthermore, the courts may ultimately determine that RFOA is the defense to disparate impact cases, rather than “business necessity,” as some commentators suggest. If an age-correlated factor does not have to be justified to serve as an RFOA, disparate impact cases will be precluded.

In Part II, this Article offers a general explanation of the ADEA. Part III explains theories of discrimination generally and in relation to the ADEA. Part IV discusses disparate treatment under the ADEA and the defense of “reasonable factors other than age,” before and after Hazen Paper. Part V discusses the applicability of the disparate impact model of proof to the ADEA before and after the Civil Rights Act of 1991; whether the RFOA defense precludes proof of disparate impact; and, if not, whether RFOA or business necessity is the defense in disparate impact cases under the ADEA. Finally, Part VI suggests an interpretation of the ADEA that will comport with congressional intent in enacting the ADEA: to eliminate age discrimination while protecting employers from employing people who are no longer able to perform the job because of the effects of aging or some reason unrelated to their age.

Keywords: Age discrimination, ADEA, Disparate Impact, Civil Rights Act of 1991

Suggested Citation

Johnson, Judith J., Semantic Cover for Age Discrimination: Twilight of the ADEA (1995). Wayne Law Review, Vol. 42, p. 1, 1995; Mississippi College School of Law Research Paper. Available at SSRN:

Judith J. Johnson (Contact Author)

Mississippi College - School of Law ( email )

151 East Griffith Street
Jackson, MS 39201
United States

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