Pathfinder Blog for Age Discrimination in Employment

Age Discrimination in Employment:  A Texas Employee & Employer Pathfinder

Evelyn Elaine Smith

MS in Library Science, University of North Texas

Ph. D. in English Texas Christian University

In memory of my dad, Walstein Bennett Smith, Jr.,
 J.D., M.B.A., Ph. D. (1920-1998)

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TABLE OF CONTENTS

·         Introduction to the Topic

·         Legal Information Sources

o   Primary Sources

o   Case Law

o   Digests - Federal, State, and Texas

o   Statues - Federal and Texas

o   Administrative Law and Regulations -- Federal and Texas

o   Secondary Sources

o   Legal Encyclopedias

o   Annotated Law Reports

o   Restatements

o   Looseleaf Service

o   Legislative Histories

o   Treatises and Hornbooks

o   Law Journals and Newsletters

o   Articles

o   Databases

o   International Legal Materials

o   Interdisciplinary Information Sources - Non-Legal

o   Books

o   Specialized Encyclopedias

o   Journals and Newsletters

o   Articles 

·         Other Information Sources - Special Libraries or Collections, Experts and Organization

Introduction to the Topic

Age Discrimination in the work place results when employers knowingly give preference to workers younger than age 40 and base their only or primary motive for favoring younger workers on the employee’s age rather than basing this decision on other reasons that they can use to justify their hiring, demotion, and firing choices.  In other words, to justify favoring an older work while excluding an older one, the younger worker’s qualifications must prove necessary to for the business to succeed. 

Since the same arguments come into play when another discriminatory factor, such as race, religious belief, sexual orientation, or gender, is substituted for age, age discrimination case law and statutes attempt to fill in where other civil rights laws which apply to employment leave off even as they borrow from the opinions of broader civil rights case law.  For example, the prima facie test that proves age- discrimination comes from, a civil rights test for establishing racial discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):  

·        The claimant belongs to a protected class; 

·        He or she is fired, demoted or not promoted to a position that he or she is qualified for;

·        His or her employer has rejected the claimant for a position despite his or her qualifications; 

·        The job remains open after the employer has rejected the plaintiff, and the employer has continued to seek applications from others with similar qualifications or has replaced him or her with someone who was not an older worker (age 40 or over).

·      If, however, the employer can rationally justify the necessity of hiring a younger worker, the claimant has not proved age discrimination.

Along the way, case law and statues continue to play tag as respondents’ attorneys find loopholes in already enacted age-based discrimination laws and precedent-setting federal and state cases. Congress and state legislatures then respond by enacting more detailed age-based discrimination laws that amend, over rule, and replace existing age-discrimination laws and judicial rulings.  Legislation and case law also responds to the greying of American society since age–discrimination now has no upper limit while originally the Age Discrimination in the Workplace Act (ADEA) (1967) applied to older employees only between the ages of 40 and 65. 

Consequently, claimants seeking redress should not only be familiar with age-discrimination in federal case law and statues, but also with state statues and case law dealing with age-discrimination that ordinarily mirror their federal counterparts with a few meaningful discrepancies.  For instance, Texas age-discrimination statues forbid age discrimination in work places with 15 or more employees whereas federal law prohibits age discrimination in enterprises that employ 20 or more employees. 

Also, while the United States government since 1998 has mandated that no federal agency can discriminate against older workers, state and local public safety workers, police, and firefighters do face a mandatory age limit for hiring and retirement (as do members of the military).  Accordingly, both employees and employers need to be aware that discrepancies exist between federal and state age discrimination laws. 

While the ADEA and the state statues that dovetail federal regulations have done much to ensure that older workers maintain their retirement benefits, age-discrimination law has had  a few unintended consequences since employers now actually hire less older workers than before Congress enacted the ADEA in 1967.  Nevertheless, an acquaintance with age-discrimination law should provide workers over 40 with some guidelines for recognizing age-discrimination at work and also allow their employers to recognize and to prevent the violation of age-discrimination laws.   

Potential claimants and employers alike thus should note that a knowledgeable attorney is the best source they can make use of in the ever-changing legal landscape of age discrimination law. This pathfinder does not attempt to give any legal advice.  It simply presents selected information on age-discrimination law; and yes, the compiler, age 59, is very biased in her belief that older workers are more than qualified for almost any type of employment.

Legal Information Sources

Primary Sources 

Case Law – Digests

·        Digest of Equal Employment Opportunity Law (Dec.  6, 2011. 8:02 AM), http://www.eeoc.gov/federal/digest/index.cfm

Online quarterly covers issues concerning EEOC law and provides synopsizes of EEOC decision as well as summarizing federal court cases that affect federal employees.  

·        Fair Employment Practices Cumulative DIGEST and Index & Table of Cases (BNA 1980). 

Published in conjunction with Labor Law Reporter, Fair Employment Practices covers discrimination in employment. 

·        Martindale-Hubbell Law DIGEST (West, 2001--).

Martindale-Hubbell thoroughly summarizes age-discrimination law not only in the U.S., but also in the U.K. and other English-speaking countries.  A separate entry from the Martindale-Hubbard Law Directory, the Martindale-Hubbell DIGEST, published since 1863, ceased printed publication ceased in 2006, but it can be accessed through Lexis Nexis.

·        West American Digest System.

The West American Digest System reports Supreme Court, federal, and state cases, organizing cases both by jurisdiction and year as well as topic through the key number system. Summaries in the headnotes provide points of law covered in each case, and the West Key Number Digest provides the key numbers used in outline form.  Many of the key numbers sub-topics covering anti-age discrimination fall under the key number 231 H, which deals with labor and employment.  Campus Research and Westlaw databases also allow patrons to access primary and secondary sources under the topic “age-discrimination”. 

Age-Discrimination Court Decisions

Supreme Court decisions since Congress enacted the ADEA have becoming a driving force for change in age-based discrimination legislation,  eventually extending protection to each worker over age 40 regardless of age as well as pointing out limitations in existing legislative law, which Congress and state legislatures  usually rush to remedy. 

 Supreme Court

·        General Dynamics Land Systems Inc. v. Cline, 540 U.S. 581(2004).

Discrimination against the “relatively young” is outside ADEA's protection, so an employer does not violate ADEA’s prohibition against discrimination by eliminating health insurance benefit programs for employees under 50 while retaining them for older workers. 

·        Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). 

An age discrimination claim can be subject to compulsory arbitration and still be consistent with the statutory framework and purposes of the ADEA.

·        Gomez-Perez v. Potter, 553, U.S. 474 (2008). 

A federal employee who is a victim of retaliation because he or she has filed an age discrimination complaint may assert a claim under the federal-section provision of the ADEA. Thus, older federal employees should take note that federal agencies can consent to be sued. 

·        Kimel v. Florida Board of Regents, 528 U.S. 62 (2000). 

States may discriminate on the basis of age without offending the Fourteenth Amendment's equal protection clause if this is in the state’s interest.  The concept of sovereign immunity prevents governments and governmental agencies from being sued without their consent.

·        Lorillard v. Pons, 434 U.S. 575 (1978).

If one of the parties in an age discrimination suit requests a trial by jury, he or she should have it since Congress intended this, even if it did not actually put this stipulation into the act. 

·        Hazen Paper v. Biggins, 507 U.S. 604 (1993). 

Disparate-treatment remedies under the ADEA do not exist when an employer dismisses or demotes an employee older than age 40 for valid reasons other than his or her age.  The ADEA only provides for liquidated damages when the action was willful.

·        Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008).

An employer bears the burden of proof to create an affirmative defense in an age discrimination suit.  The employer, however, is exempt from liability for a disparate impact claim if the employer can prove that any actions it takes to dismiss or demote employees stem from reasonable motives other than an older employee’s age. 

·        O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). 

Whether or not a terminated employee who is a member of a protected class has lost a position to another person in a protected class is irrelevant, so long as the employee has lost his or her employment because of age.  Assuming that Title VII's McDonnell Douglas’ framework applies to all age discrimination cases, a logical correlation between each element of the prima facie case must exist to prove age discrimination.  Although the ADEA limits its protection to those over age 40, it prohibits discrimination based on age not membership in a protected class. 

·        Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). 

A prima facie case may permit the court to discover that an employer has discriminated against an older employee without any additional evidence of unfairness, even if this sometimes does not sustain the jury's finding of liability. Following the landmark McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework, a plaintiff must first establish a prima facie case of age discrimination, and the employer must then come up with a nondiscriminatory reason for firing the employee.  

Smith v. City of Jackson, 544 U.S. 228 (2005). 

Under the ADEA, disparate-impact claims are categorically unavailable, but facts alleged by petitioners entitle them to relief under Griggs v. Duke Power Co., 401 U.S. 424 (1971), the decision that first stated the disparate-impact theory of recovery for cases brought under Title VII of the Civil Rights Act of 1964 (Title VII).  Civil Rights cases often refer back to the landmark Griggs case, and the ADEA authorizes recovery in disparate-impact cases that compares to the remedies the Griggs case gives.  However, ADEA narrows its coverage to limit discrimination to individuals classified as older workers. 

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985). 

To classify a violation of the ADEA as “willful” defendants must either know or recklessly disregard conduct the ADEA prohibits.  However, if a defendant did not know that its conduct violated the ADEA, and the defendant acts reasonably and in good faith, its conduct is not “willful”, so respondents cannot claim liquidated damages.

Federal Court Decisions

 Federal court decisions often iron out the details in age-discrimination law, giving incentive to Congress and state legislatures to tweak age-discrimination laws.

·        Barnes v. Hillhaven Rehabilitation & Convalescent Center, 684 F. Supp. 311 (N. D. Ga.1988). 

The filing period for an EEOC charge of age discrimination begins when an employer clearly informs an employee that he or she will have to resign or be discharged. While both the Age Discrimination Claims Assistance Act of 1988 and the Age Discrimination Claims Assistant Amendments of 1990 have lengthened the time claimants have to file anti-discrimination complaints with the EEOC,  and the Lilly Ledbetter Fair Pay Act of 2009 has linked it to the last discriminatory  pay check a claimant received before filing an  age-discrimination claim, this case underlines the caveat that claimants need to be aware of filing deadlines established by amendments to the ADEA.

·        Blakeney v. Lomas Information Systems, Inc., 65 F. 3d 482 (C. A. 5 Tex. 1995).

 

An individual may not waive rights under the Older Workers Benefit Protection Act (OWBPA) unless the waiver is “knowing and voluntary”.  However,  even if such a release from liability is voidable for its failure to meet requirements of the Older Workers Benefit Protection Act (OWBPA), the failure to return consideration for the promise not to sue shows that the terminated employee intends to be bound by the terms of the waiver.  Thus, cashing the pay check creates a new promise and new obligation that is enforceable despite the waiver's failure to meet the statutory requirements.

·        Bodenheimer v. PPG Industries, Inc. 5 F. 3d 995 (C.A. 5 La. 1993). 

To make prima facie case of age discrimination, the plaintiff must demonstrate that 

·        he or she was discharged;

·        that the plaintiff was qualified for the position from which he or she was let go;

·        that he or she was a member of a protected class when dismissed;

·        that he or she was either replaced by someone outside a protected class, replaced by someone younger, or otherwise discharged because of age.

All of which is established in the landmark case of McDonnell Douglas v. Green, 411 U.S., 411 U.S. 792 (1973) as well as by the ADEA.  An employer, on the other hand, can counter this prima facie evidence by providing evidence that otherwise justifies the firing of an older employee.   

·        Clark v. Resistoflex Corp., 854 F. 2d 762 (C.A. 5 La. 1987). 

Clark v. Resistoflex gives another take on the idea that “age discrimination” in employment complaints must be timely filed with EEOC prior to the initiation of civil action under the ADEA; but here, the court defines “timeliness” by whether the unlawful practice occurred in a “deferral state”; in which case, the time limit for filing age discrimination claims is 300 days while the time limit in a “non- deferral state” is 180 days. A deferral state exists when state law prohibits age discrimination.  The ADEA filing deadline for age discrimination suits goes into effect the day the employee knew that he or she would be fired, not his or her last day of work. 

·        Collazo v. Nicholson, 534F. 3d 41(1st Cir. P. R, 2008).

In contrast with Title VI, which allows for victims of discrimination to seek compensatory damages for emotional distress and pain and suffering, the ADEA limits claims to pecuniary benefits, collecting for unpaid wages or over time. To collect an ADEA claim, an employee must prove that he or she suffered adversely from the actions of an employer that resulted from the employee age over 40. 

·        Daughtrey v. Honeywell, 3F. 3d 1488 (C. A. 11 Ga.1993). 

The plaintiff must show that an employer had specific intent to interfere with his or her right to benefits as established by Employee Retirement Income Security Act of 1974  (ERISA) (Pub. L. No. 830406, 88§ 829) to determine if an employer has discharged an employee since retaining him or her would interfere with the company’s benefits plan. 

·        Hamilton v. Caterpillar, Inc., 966 F. 2d 1226 (C. A. 7 Ill.1992).

The ADEA does not provide remedies for reverse age discrimination since this goes beyond the scope of the statue. 

·        Karlen v. City Colleges of Chicago, 837 F. 2d 314 (7th Cir. 1988).

Early retirement plans that treat relatively younger employers who are older than age 40 better than older ones do not violate the ADEA since this act does not mandate equal treatment of younger employees if they belong to the same age class as older employees. If, however, an employer uses age and not cost or years of service as a basis for varying retirement benefits, the employer has to prove a connection between the employees’ responsibilities and their cost to the employer. 

·        Geller v. Markham, 635 F. 2d 1027 (C.A. Conn., 1980). 

A plaintiff establishes a prima facie case of age discrimination by showing an employer’s supposedly neutral practice has a disparate impact on workers of an ADEA protected class.  However, the employer may justify his or her actions are necessary to the successful conduct of business or related to job performance. 

·        Morelli v. Cedel (C. A. 2 N.Y. 1998).

When branches of foreign corporations operate in the U.S., the ADEA under most circumstances protects the foreign corporation’s employees if the corporation has at least 20 employees working in the U.S. since foreign corporations are subject to U.S. anti-discrimination laws. 

·        Sprint United Management Co. v. Mendelsohn, 587 F. Supp. 2d 1201 (D. Kan., 2008).

This widely cited case notes that when testimony comes as antidotal evidence, whether it is admissible depends on how closely it relates to the plaintiff’s situation.  However, unfair prejudice and confusing issues might outweigh the value of such evidence. Moreover, the plaintiff must show that a decision-nmaker made discriminatory statements that adversely affected the employer’s actions.

·        Waldron v. SL Industries, Inc. 849 F. Supp. 996 (D. N.J.1994).

An employer’s justifications for the firing of an older employee may be so contrived that they support a finding of age discrimination. 

·        Suarez v. Pueblo Int’l Inc. 229 F. 3d 49 (C.A. 1 P. R. 2000).

When an ADEA claim arises from a reduction in a company’s work force, an employee of at least 40 years of age who has met his or her employer’s expectations can establish a prima facie case if he or she has lost a job because of the employer’s adverse actions if this plaintiff proves that in an company’s downsizing of employees, the employer did not act in a non-biased way towards the plaintiff. The court then uses the reasonable person test, answering whether the work conditions imposed on an older employee were so abusive that a reasonable person would resign. 

State Court Decisions

State court decisions ordinarily follow the lead of federal court decisions, which, of course, have precedence.

·        Ferrante v. American Lung Assn., 90 N.Y. 2d 623 (1997).

The New York Human Rights law specifies that to support a prima facie case of age discrimination, the plaintiff must prove 1) his or her membership in a class protected by statute, 2) that the plaintiff’s employer discharged him or her, 3) that he or she was qualified to hold the terminated position, 4) and age discrimination against the plaintiff can be reasonably inferred.  After the fired employee has set forth this clear-cut case of age discrimination, the burden of proof shifts to the employer to present legitimate, nondiscriminatory reasons that support the decision to terminate the employee.  

If, however, the defendant does not given any other reasonable explanations for firing the employee, judgment favors the plaintiff.  But if the defendant raises issues of fact, then he or she has successfully rebutted the prima facie case. In other words, employers should keep copious records detailing all employee disciplinary decisions.

·        Guz v. Bechtel National, Inc., 23 Cal. 4th 317 (Cal., 2000).

Employers have the absolute right to eliminate an employee's work unit and to transfer its responsibilities to another company division, so employees cannot claim a breach of an implied covenant.  An employer does not create an implied-in-fact employment contract preventing termination at will by retaining an employee for many years when the company’s policy manual states that employees hold no contracts guaranteeing their continuous employment and can be terminated at the employer's discretion.  Moreover, downsizing by itself is not enough of a reason to allege discrimination when a company dismisses an age-protected worker.  

·        Marks v. Loral Corp. 57, Cal. App. 4th 30 (1997). 

The use of a salary to differentiate between employees discriminates if it adversely affects older employees as a group. However, the employer's use of salary to differentiate between employees is not an example of discrimination if the employer bases employee salaries on “reasonable factors other than age” Thus, the employer may avoid charges of age discrimination by offering older workers the opportunity to work at the same job for reduced pay.

Texas Court Decisions

Texas case law bases its decisions both upon Texas-anti-age discrimination statues and on federal legislation and case law. 

·        DeMoranville v. Specialty Retailers, 909 S.W. 90 (Tex.1995). 

Texas employees claiming age discrimination must file complaints of unlawful practices with the EEOC or the Texas Commission on Human Rights within 180 days after the unlawful employment practice.  This limitations period starts when the claimant learns he or she will be fired, not when he or she is actually let go. This law, in turn, has been superseded by federal legislation that extends this time period to 300 days for employers that employ 20 or more employees. It is still an important law, however, because Texas statues allow employees to make age discrimination claims when they work for firms of 15 or more employees.

·        Quantum Chemical Corp. v. Toennies, 47 S.W. 3d 473 (Tex. 2001). 

To establish a claim of age discrimination, Texas plaintiffs only must prove that age was a motivating factor when an employer terminated an employee.  Ample circumstantial evidence in the form of coworkers’ testimony, letters, and e-mails can also prove that the employer’s claim that the employee was fired for poor performance is simply a pretext for age discrimination.  

Statutes - Federal and Texas

Federal

 

·        Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. No. 90-202, 29 U.S.C. § 621--29 U.S.C. § 634 (1967). 

As the various cases reviewed earlier on this site indicate, the upper age limit covered by this act have changed several times from 1965 in 1967 to  no upper limit today;  however, the ADEA first made it illegal to discriminate against workers over age 40 in the work place in 1967. 

 Information given online about the ADEA includes amendments to the act as shown in the following EEOC web site:

The Age Discrimination in Employment Act of 1967 (ADEA), EEOC (Dec. 14, 6:40 AM), http://www.eeoc.gov/laws/statues/adea.cfm

·        Age Discrimination Employment Amendments of 1986, Pub. L. 99-593, 100 U.S.C. § 3342 (1986). 

 Act eliminates the upper age limit of 70 from the ADEA.

·        Age Discrimination Claims Assistance Act of 1988, Pub. L. 100-283, 29 U.S.C. §626 (1988). 

Statue allows claimants an additional 18 months to file a complaint of age discrimination with the EEOC.

·        Older Workers Benefit Protection Act of 1990 (OWBPA), Pub. L. No. 101-433, 29 U.S.C. §§ 623-630 (1990).

Older Workers Benefit Protection Act of 1967 (OWBPA), EEOC (Dec. 12, 2011, 10:05 AM).  http://www.eeoc.gov/eeoc/history/35th/thelaw/owbpa.html

 

Overrules Supreme Court’s 1989 decision, Public Employees Retirement System of Ohio v. Betts that held that ADEA ordinarily does not forbid age discrimination in employee benefits. 

·        Age Discrimination Claims Assistance Amendments of 1990 (ADCAA II), Pub. L. No. 100-283, 29 U.S.C. § 626n.

Act gives age-discrimination claimants an additional 450 days to file their own private law suits. 

·        Civil Rights Act of 1991, Pub. L. 102-16642, U.S.C. §1981 et. seq.  

An Amendment to the Civil Rights Act of 1964, this act allowed a plaintiff to show that an individual or group practice resulted in a disparate impact on him or her on the basis of race, color, religion, sex, or national origin if the defendant cannot prove the business necessity of such a practice.  Age-discrimination law suits seized upon this statue as a means of extending similar rights to individuals over age 40.   

·        Age Discrimination in Employment Amendments of 1998, Pub. L. No. 104-208, 110 § 3009 (1996).  

Permanently reinstates an exemption that allows state and local governments to use age as a basis for hiring and retaining police and fire fighters.

·        Nondiscrimination on account of age in federal government employment, Pub. L. 205-330, Title III U.S.C. § 341 (1998). 

Statue forbids all federal government agencies from discriminating on the basis of age for individuals over 40.

·        Workforce Investment Act of 2998 (WIA), Pub. L. 105-220, 112 U.S.C.

·        Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111-2, 123§ 5(2009).
  

Lilly Ledbetter overturns the Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) decision that found the statute of limitation in an equal-pay law suit begin the day the employer makes the first discriminatory pay decision. The act thus amends the Civil Rights Act of 1964, extending the 180-day period to file a discrimination law claim, so that it starts again with each discriminatory pay check.  

Texas 

·        Texas Commission on Human Rights Act (TCHRA), Texas Labor Code, Title 2 §. 21.051 et seq. (1983, amended 2009).

Act established the Texas Commission on Human Rights, which the Human Rights Commission of the Civil Rights Division of the Texas Workforce Commission superseded in 2009. The Civil Rights Division of Texas Workforce Commissions  handles complaints involving age discrimination as enforced through the Texas Labor Code § 21.001 et seq., Employment Discrimination.  Age Discrimination is dealt with in 21.051 et seq.

Administrative Law and Regulations - Federal and Texas

Federal

Although all age-related discrimination codes fall under the aegis of Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), which is accessed under 42 U.S.C. § 2000(e), age-discrimination claims are covered separated under the Age Discrimination in Employment Act of 1967 and the Older Workers Benefit of Protect Act of 1990. The duties of the Equal Employment Opportunity Association (EEOC), the federal agency that handles discrimination claims, are covered in 42 U.S.C. 20000e-4.  Congress has empowered the EEOC to file claims for all types of discrimination in employment as well as to provide training, education, and assistance to workers. The EEOC website covers civil rights law in regards to employment by type, laws, regulations, and prohibited practices.

Title VII of the Civil Rights Act of 1964.  U.S. Equal Employment Opportunity Commission.  http://www.eeoc.gov.

Access to United States Code:

·        Users can access an un-annotated version of U.S. Code by title and section, subtitle,  and division online:   http://uscode.house.gov/search/criteria/shtml

·        Search the Office of the Law Revision Counsel, United States Code (Dec. 14, 2011, 8:45 PM), http://uscode.gov/search/criteria/shtml

·        Westlaw provides U.S.C.A., and Lexis Academic publishes U.S.C.S. both online and in hardcover volumes. The primary statue that deals with age discrimination is the Age Discrimination Employment Act of 1967 as detailed in 29 U.S.C. § 1625.1 to §1625.32. The Older Workers Benefit Protection Act details ways in which older workers can relinquish their rights to pensions and employment plans.

·        Age Discrimination in Employment Act of 1967, 29 U.S.C. § 1625.1 –1625.32.

  Retrieved from http://ecfr.gpoaccess.gov , this act has three parts:

 Subpart A—Interpretations:

§1625.1 Definitions.

§1625.2 Discrimination prohibited by the Act.

§1625.3 Employment agency.

§1625.4 Help wanted notices or advertisements.

§1625.5 Employment applications.

§1625.6 Bona fide occupational qualifications.

§1625.7 Differentiations based on reasonable factors other than age.

§1625.8 Bona fide seniority systems.

§1625.9 Prohibition of involuntary retirement

§1625.10 Costs and benefits under employee benefit plans.

§1625.11 Exemption for employees serving under a contract of unlimited tenure.

§1625.12 Exemption for bona fide executive or high policy making employees.

Subpart B—Substantive Regulations:

§1625.21 Apprenticeship programs.

§1625.22 Waivers of rights and claims under the ADEA.

§1625.23 Waivers of rights and claims: Tender back of consideration.

Subpart C—Administrative Exemptions:

§1625. 30 Administrative exemptions; procedures.

§1625.31 Special employment programs.

§1625.32 Coordination of retiree health benefits with Medicare state health benefits. 

Authority: 81 Stat. 602; 29 U.S.C. 621; 5 U.S.C. 301; Secretary's Order No. 10–68; Secretary's Order No. 11–68; Sec. 9, 81 Stat. 605; 29 U.S.C. 628; sec. 12, 29 U.S.C. 631, Pub. L. 99–592, 100 Stat. 3342; sec. 2, Reorg. Plan No. 1 of 1978, 43 FR 19807. 

·     e-CFR Data is current as of Dec. 5, 2011. Additionally, West’s Key word system cites the various sections of the ADEA in its publications, so the reader can match the legal decisions to points in the ADEA. 

GPO Access, Electronic Code of Federal Regulations (Dec. 14, 7:05 PM), http://ecfr.gpoaccess.gov

·        Older Workers Benefit Protection Act, 29 U.S.C. § 623 (1990).

OWBPA prohibits discriminatory employment benefit retirement plans, so under the ADEA waivers of rights must meet the following criteria:

·        knowing and voluntary;

·        part of a written, clearly understood agreement;

·        refer specifically to ADEA rights or claims;

·        exclude waiver of claims and rights arising after date of waiver;

·        be for consideration (something employee not already entitled to);

·        advise individual to consult an attorney;

·        provide 21 days for an individual to consider the waiver, 45 days if group offer;

·        allow individual seven days to revoke the waiver.

When group layoffs or exit incentive programs are involved, the employee must be given:

·        Information on the class of employees covered;

·        eligibility factors;

·        time limits applicable;

·        information as to job titles and ages of individuals eligible or selected;

·        ages of individuals in same job classification or unit not selected.

·        Office of General Counsel.  Catholic University of America. Office of General Counsel, Employment. Equal Employment Opportunity, Older Worker Benefits Protection Act of 1990, (Dec. 13, 2011, 2:13 PM). http://counsel.cua.edu/fed/law/older.cfm

Texas

 Printed, and Database Access

·        Users can access Texas statues through the Texas Legislature Online at http://www.statues.legis.state.txus/

Additionally, access is available through Westlaw through links to Texas Statues Unannotated, Texas Statues Annotated, and Historical Statues Annotated as well as through Lexis Academic, which provides access to Texas Codes and Rules Annotated, Texas Statues and Codes, and Texas Statues and Codes Archives. West’s Texas Digest 2d 34 C covers cases that users may be accessed through tables as well as descriptive key words. Cited case law backs up statue law (or vice versa). 

For example, the Key number 861– Presumption and burden of proof can be used in age discrimination cases that follow the general pattern of Advance Ross Electronics Corp. v. Green 624 S.W.  2d 316 (1981): When an agreement requires cause to terminate an employee, the burden of proof for establishing cause rests upon the employer (KEY NUMBER  862,  LABOR & EMPLOYMENT, WEST  TEX. DIGEST 2D). 

·        Texas Labor Code. Title 2: Protection of Laborers. Subtitle A. Employment Discrimination.  Ch. 21. Employment Discrimination. Subchapter A.

·        Chapter 21 of the Texas Labor Code provides the means for Texas statutory law to carry out the policies of federal law as enumerated in Title VII of the Civil Rights Act of 1964 as well as its accompanying supplemental acts, including the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 1625.1 –1625.32).

As noted below, users can retrieve this source  from http://www.statues.legis.state.tx.us/

·         
Texas Labor Code § 21.051. Discrimination by Employer.

If an employer fails to hire, discharges, or discriminates in compensation, terms, or conditions or privileges of employment because of race, color, disability, religion, sex, national origin, or age, that employer has committed an unlawful employment practice (Acts 1993, 73rd Leg., chap. 269, §1).

·        Texas Labor Code § 21.052. Discrimination by Employment Agency.

If it unlawful for an employment agency to refuse to refer a potential employee because of his or her race, color, disability, religion, sex, national origin, or age (Acts 1993, 73rd Leg., ch. 269, §1). 

·        Texas Labor Code § 21.054. Administration or Participation in Training Program.  

A training program only discriminates if it differentiates employees of at least 40 years of age but younger than 56 years of age unless the program is provided for as an affirmative action program under federal law (Acts 1993, 73rd Leg., ch. 269, § 1). 

·        Texas Labor Code § 21.059.  Discrimination Notice of Advertisement.

Based on potential employees’ race, color, disability, religion, sex, national origin or age, it is unlawful to publish a notice soliciting employment that indicates a particular preference unless this preference is an occupational qualification (Acts, 1993, 73rd Leg., ch. 269, § 1).

·         Texas Labor Code § 21.061. Insufficient Evidence of Lawful Practice.

The employment of one individual instead of another does not furnish sufficient evident to establish an unlawful employment practice in the absence of other evidence (Acts, 1994, 73rd Leg., ch. 269, §1).

·        Texas Labor Code § 21.101.  Age Discrimination Limited to a Certain Age.

Age-discrimination only applies to individuals 40 years of age or older (Acts 1993, 73rd Leg., ch. 269, § 1).

·        Texas Labor Code § 21.102 (b). Bona Fide Employment Benefit Plan.  Production Measurement System.

A benefit plan may not justify a failure to hire because of age; a seniority system or employment benefit play may not require or permit involuntary employment because of age (Acts 1993, 73rd Leg., ch. 269, § 1).

·        Texas Labor Code § 21.104. Age Requirement for Peace Officers or Firefighters. 

Employers do not commit an unlawful employment practice by imposing a minimum or maximum age for employment on police and fire fighter personnel (Acts 1993, 73rd Leg., ch. 269 § 1).

 

·        Texas Labor Code § 21.112. Employees at Different Locations. 

If an employee hires employees at different locations using different standards of compensation and/ or terms of employment, that employer does not discriminate on the basis of age, color, disability, religion, sex, national origin, or age (Acts 1994, 73rd Leg., ch. 269 § 1; modified Aug. 11, 2007). 

·        Texas Labor Code § 21.113. Imbalance Plan Not Required. 

Employees do not have to give preferential treatment on the basis of race, color, disability, religion, sex, national origin, or age (Acts 1993, 73rd Leg., ch. 269, § 1; modified Aug. 11, 2007).

·        Texas Labor Code § 21.115. Business Necessity.

Even if an employment practice has a discriminatory effect, an employer has not committed an unlawful practice if the employer has not intentionally devised this practice to set apart particular workers or the employer justifies a practice as a business necessity (Acts 1993, 73rd Leg., ch. 269, § 1, modified Aug. 11, 2007). 

·        Texas Labor Code § 21.119.  Bona Fide Occupation Qualifications. 

If hiring a particular type of employee who is set apart by religion, sex, national origin, or age, is a bona fide occupational qualification, an employer may legally defend the hiring of certain individuals rather than others (Acts 1993, 73rd Leg., ch. 269, § 1, modified Aug. 11, 2007). 

·        Texas Labor Code § 21,122.  Burden of Proof in Disparate Impact Case. 

A claimant can establish that an unlawful employment practice in a disparate impact case has occurred if he or she proves that the respondent uses race, color, sex, national origin, religion, or disability as a reason to hire, fire, or to discriminate against to an employee.  Texas courts will apply federal judicial interpretations under the Age Discrimination Act of 196 (29 U.S.C. § 621 et seq. in all age-discrimination cases (Acts 1993, 73rd Leg., ch. 269, § 1, modified Aug. 11, 2007). 

·        Texas Labor Code § 21.125. Clarifying Prohibition Against Intermissible Consideration of Race, Color, Sex, National Origin, Religion, Age, or Disability in Employment Practice.  

A claimant can establish that an employer has committed an unlawful employment practice if the claimant can prove that an employee or potential employee’s race, color, sex, national origin, religion, age, or disability was the motivating factor (Added by Acts 1995, 74th Leg., ch. 76, § 9.05 (a); amended by Acts 1997, 75th Leg., ch. 1126, §1).

·        Texas Labor Code § 21.126. Coverage of Previously Exempt Employees of the State or Political Division of the State.

It is unlawful for an elected public official in the state of Texas to discriminate  against an employee or job applicant on the basis of race, color, sex, national origin, religion, age, or disability if that individual is to serve as a staff member or adviser of that elected public official (Added by Acts 1995, 74th Leg. Ch. 76, § 9.05 (a). 

Texas Legislature Online, 82nd Legislature, First Called Session (Dec.14, 2011, 7:43 PM), http://www.statues.legis.state.tx.us/

Secondary Sources

Legal Encyclopedias

·        AMERICAN JURISPRUDENCE 2nd.

A quick search with the words “Age Discrimination Employment Act” on Westlaw’s Campus Research pulled up 462 documents that discuss pertinent cases.  Am. Jur. Also provides links to treatises and finding aids as well as key cite information on both Westlaw and Campus Research.  Lexis Academic also furnishes its version of Am. Jur. 2d. Am. Jur. 2d’s printed volumes allow users to find information through an index at the end of the set and in the table of contents of each volume while footnotes reference case law, codes, secondary sources, and annually replaced supplements. 

·        CORPUS JURIS SECUNDUM 

As its secondary title indicates, CORPUS JURIS SECUNDUM provides a “Complete Restatement of the Entire American Law as Developed by All Reported Cases” in alphabetical order. A property of West Publishing, CORPUS JURIS SECUNDUM is available in print and on Westlaw.  This restatement reference covers the ADEA under the heading of Civil Rights § § 264 and 698. Age-discrimination in employment law falls under the Civil Rights topic heading, § 261-278; §264 details establishing a prima facie case under the McDonnell Douglas framework, even if this case predates ADEA cases that use this strategy.

·        DESKBOOK ENCYCLOPEDIA OF EMPLOYMENT LAW (ed. Steve McEllistrem, 15th ed. 2007). 

This Desktop Encyclopedia encompasses federal and state cases affecting employment, covering discrimination, discipline and termination, employee benefits, employer liability, and labor relations. 

·        LABOR AND EMPLOYMENT LAW AND ECONOMICS (eds. Kenneth G. Dau-Schmidt et al 2009).

Desktop volume includes discrimination in one of its chapters written by scholars in law and economics. 

·        TEXAS JURISPRUDENCE III (TEX. JUR. III).

Published by Westlaw, TEX. JUR. III attempts to provide a comprehensive analytical treatment of the decisions of Texas courts as well as acts of the Texas legislature as 400 separate topics and a words and phrases index allow users to search for information on Texas statues and cases. TEX. JUR. covers age discrimination law under the heads of Civil Rights, §§24, 62, 78, 79-81 and Employer §75.  Case law that appears in footnotes supports statue law.

Annotated Law Report (A. L. R.)

 A.L.R. provides timely secondary sources pertinent to federal cases as published in a series of seven Reports.  In print, users choose a topic and then consult the index volume and look up the annotation. Since A.L.R. is also available on Lexis Academic and Westlaw, users can also access information by means of keywords. The online sources are updated weekly. At last count, a Boolean search reveal over 400 articles that cover age discrimination in employment.  Thus, A.L.R. is an important resource for determining age discrimination in employment trends as the following ALR articles show:

·        Tracy Bateman Farrell, J.D.  Annotation, Sex-Plus Discrimination Claims Under Title VII of Civil Rights Act of 1964 (U.S.C. A. §§ 2004 et seq.). 51 A.L.R. FED. 2d 341 (2010).

Sex-plus discrimination law suits mark a new frontier in civil rights work place law suits where an employer classifies employees on the basic of their gender plus another characteristic, such as age, race, or physical characteristics.  Instead of differentiating between men and women as a whole, the employer discriminates upon his or her gender plus another civil rights category.  A brief review of sex plus age claim reveals that the courts have favored employees over the individuals making the claims. 

·        Deborah E. Buckman, J. D. Annotation, Preemption by Airline Deregulation Act. 49 U.S.C.A. § 41713(b)(1) of State Law Labor-Related Claim.  41713(b)(1). 41 A.L.R. FED. 2d 215 (2009).

Article cites instances where the Airline Deregulation Law did not preempt local and state laws forbidding age discrimination.

·        Daniel A. Klein. Construction and Application of Lilly Ledbetter Fair Pay Act of 2009. Pub. L. No. 111-2, 124 Stat. 5 A.L.R. FED/ 2d 201 (2009).

Klein explains how legislative action overturned the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 68 (2007), which changed the filing time in discrimination law suits from an 180- to a 300-day filing period as noted by the recent age-related discrimination cases, Almond v. Unified School Dist. N. 501, 749 F. Supp. 2d 1196 (D. Kan. 2010) and Chennareddy v. Dodaro, 2010 WL 3024164 (D.D.C. 2010).  

Restatements

RESTATEMENT (THIRD) OF EMPLOYMENT LAW (ALI 2008).

Restatement of Employment Law condenses and restates existing employment law, which also encompasses age-discrimination in employment cases, into a series of principles or rules. All series of Restatements are available on Westlaw, although only the 2nd and 3rd series can be accessed via Lexis Academic. 

Looseleaf Services

·        EMPLOYMENT COORDINATOR (2011).

First published as RIA Employment Coordinator, this “looseleaf” is available on the Westlaw Database as well as in print in selected law libraries; for example, the University of Texas Law Library’s catalog lists a looseleaf version. 

·        LABOR LAW REPORTS: EMPLOYMENT PRACTICES (1972- ). 

 

Originally published in 1965 as Employment Practice Guide, this topical law series covers discrimination in employment law and its accompanying legislation as well as labor law and labor law statues. 

·        LEX K. LARSON.  EMPLOYMENT DISCRIMINATION [Looseleaf service in print and through Lexis Nexis] (2nd. ed. 1975--).

Updated three times annually and available through Lexis Academic, Employment Discrimination covers discrimination in employment and labor and furnishes updates on newly enacted or pending legislation.

Legislative Histories

·        Congressional Record.

The Congressional Record is available both in print and since the 93rd Congress (1973-1974) online via the Library of Congress’ Thomas, Lexis Congressional, and the Westlaw and Campus Research databases. Listed below in reverse chronological order is a the bill history available through Westlaw publications online as it pertains just to ADEA amendments and the Older Worker’s Benefit Protection Act during the last three decades, although the Westlaw link to the Congressional Record turned up 20 entries. 

Since the Thomas database comes up far too many entries in a keyword search, the Westlaw and Lexis databases are useful in weeding out extraneous material.  Be forewarned, however, that the term “age discrimination in the workplace” in Boolean searches comes up with everything from the nomination of Elena Kagan as an Associate Justice to the Supreme Court (156 Cong. Rec. S. 6612) to the Jobs for Mainstreet  Act (155 Cong. Rec. H 15431). 

·        The Library of Congress, Congressional Record, Thomas. http://thomas.loc.gov/head/LegislativeData.php?&n-Record&c-111).

·        Age Discrimination in Employment Act:

o    STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS 150 Cong. Rec. S1288-01 (Feb. 12, 2004).

o    STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS 147 Cong. Rec. S5441-01 (May 22, 2001).

o   AGE DISCRIMINATION IN EMPLOYMENT WAIVER PROTECTION ACT. 134 Cong. Rec. S14706-01 (Oct. 5, 1988).

o   AGE DISCRIMINATION CLAIMS ASSISTANCE ACT OF 1988. 134 Cong. Rec. H1251-02 (March 29, 1988).

o   AGE DISCRIMINATION CLAIMS ASSISTANCE ACT. 134 Cong. Rec. S2477-01 (March 17, 1988).

o    AMENDMENT OF AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967. 132 Cong. Rec. S16850-02 (Oct.16, 1986).

o   AGE DISCRIMINATION IN EMPLOYMENT AMENDMENTS OF 1986. 132 Cong. Rec. H8117-02 (Sept. 23, 1986).

·        Older Workers Benefit Protection Act:

o   OLDER WORKERS BENEFIT PROTECTION ACT. 136. Cong. Rec. H8614-02 (Oct.  2, 1990).

o   AMENDMENTS SUBMITTED. 136 Cong. Rec. S13435-02 (Sept.24, 1990).

o   OLDER WORKERS BENEFIT PROTECTION ACT. 136 Cong. Rec. S13660-02 (Sept. 24, 1990).

o   OLDER WORKERS BENEFIT PROTECTION ACT.136. Cong. Rec. S13594-01 (Sept. 19, 1990).

o   OLDER WORKERS BENEFIT PROTECTION ACT. 136. Cong. Rec. S13292-02 (Sept.18, 1990).

o   OLDER WORKERS BENEFIT PROTECTION ACT. 136. Cong. Rec. S13236-02 (Sept, 17, 1990).

o   OLDER WORKERS BENEFIT PROTECTION ACT 136 Cong. Rec. S12982-01 (Sept. 12, 1990).

The Library of Congress, Congressional Record, Thomas (Dec. 14, 9:25 PM), http://thomas.loc.gov/head/LegislativeData.php?&n-Record&c-111).

·        U.S. Code Congressional and Administrative News.

The U.S. Code Congressional and Administrative News gives either the House or Senate Report online prior to the 99th Congress, but after this, it provides the reports of both legislatures.  Available via the Westlaw database and on Thomas since 1973, U.S.C.C.A. N. is also available in print from 1952, although not all government document depositories house all past copies of the U.S.C.C.A.N.   

Organized by public law number, U.S.C.C.A.N. allows the user to access information on public law titles and their dates of consideration and passage as well as committee report numbers and names, bill numbers, and Congressional volume numbers.  U.S.C.C.A.N. pamphlets also include Presidential proclamations and executive orders as well, which means users can find in print all federal statues at large since 1952.  

Treatises and Hornbooks

·         

·        MARK A. ROTHSTEIN ET AL, EMPLOYMENT LAW (4th ed. 2010). 

Rothstein covers various forms of discrimination in the workplace as well as area pertinent to age-discrimination cases, such as wages, hours, and benefits, conditions of employment, and discharge. 

Law Journals and Newsletters

Finding Aids

·        LegalTrac 

Gale’s LegalTrac gives subscribing libraries access to law reviews, legal newspapers, specialty publications, bar journals, and international legal journals. 

·        Index to Legal Periodicals and Books in Print. (H. W. Wilson, 1994--). 

Available both in print, with updates issued monthly and through Westlaw databases, the index lists legal topics by topic, including “age discrimination”.  Increasingly, law libraries rely on electronic publications for this index rather than purchase the print version.  For example, Baylor Law School’s print version of the Index only runs through 2008.

·        Westlaw, Campus Research, Lexis Nexis, FindLaw, and Google Scholar.

Westlaw, Campus Research, and Lexis Academic provide subscription access to legal journals while FindLaw and Google Scholar provide online access to a limited number of law review journals. On Google Scholar, researchers can choose to access items either by most recent year or by topic relevancy. 

Law Review Articles on Age Discrimination

·        Charles Brown, Comment, Congressional Abrogation of Eleventh Amendment Immunity by Passing the ADEA and the ADA, BAYLOR L.REV. 339 (1999).

Brown argument that the Supreme Court may resolve the issue of whether or not it allows state and local government employees over age 40 to collect liabilities in age-discrimination cases if it grants certiorari in a number of cases that seek to address governmental immunity from liability even though published in 1999 predates the Nondiscrimination on account of age in federal government employment Act of 1998. 

 Here Brown argues that such decisions might prove difficult because Congress failed to express its intent in this matter, and because the ADEA does not enforce the 14th amendment, thus showing that Congress is continually trying to play catch up with case law rulings on age discrimination.  

·        Christine Jolls, Hands-Tying and the Age Discrimination and Employment Act, 74 TEX L. REV. 1813 (1995-1996).

“Hand-tying” refers to an employer not engaging in attractive short-term behavior that often results in destructive long-term results.  In limiting the range of an employer’s acceptable behavior, the ADEA enables employers who wish to compensate workers based on their ages to do so. The most basic form of age discrimination occurs in disparate impact cases, such as Hazen Paper Co. v. Biggins, 507 U.S. (1993).  Hence, disparate impact liability is a favored device in cost-based decision making.

·        D. Aaron Lacy, Symposium, Second National People of Color Legal Scholarship Conference: You Are Not Quite as Old as You Think: Making the Case for Reverse Age Discrimination Under the ADEA, 29 Berkeley J. EMP. & LAB. L. 363 (2005). 

The ADEA offers limited protection to relatively younger members of protected classes from reverse discrimination.  However, the ADEA does not stop the states from enacting statues increasing ADEA-style protections.  Similarly, Congress could amend the ADEA to disallow all forms of age discrimination. 

·        Mack A. Player, Title VII Impact Analysis Applied to the Age Discrimination in Employment Act.  Is a Transplant Appropriate? 14 Tol. L. Rev. 1261 (1982-1983). 

Title VII and a pre-Age Discrimination in Employment Act case that applied it, McDonnell Douglas v. Green, 411 U.S. 802 (1973) sets the standard of proof in disparate-treatment, age discriminated cases as first delineated in Burdine v. Texas Department of Community Affairs, 608 F.2d 563 (5th Cir. 1979), although Burdine further clarifies this standard by requiring the plaintiff to gives the reasons for his or her rejection or dismissal.  The defendant’s motive is difficult to prove since the defendant may deny that age discrimination plays any if any role in the treatment of the employer.  Nevertheless, the McDonnell Douglas model provides a flexible structure for proof of motivation.

·        Evan H. Pontz, Comment, What a Difference ADEA Makes: Why Disparate Impact Theory Should Not Apply to Age Discrimination in Employment Act, 74 N.C.L.REV. 267 (1995). 

Pontz suggests that Congress should address disparate-impact age discrimination claims rather than the judiciary. Since Congress did not mention disparate impact theory in the original 1967 ADEA bill or in any of the amendments of the same means that Congress only intended the disparate-impact test only to be implied in Title VII cases.    

Of course, Congress addresses this oversight in 

·        Toni J. Querry, Note, A Rose by Any Other Name No Longer Smells as Sweet:  Disparate Treatment Discrimination and the Age Proxy Doctrine After Hazen Paper Co. v. Biggins, 81 Cornell L. REV. 530 (1996). 

The Supreme Court greatly narrowed the scope of the age proxy doctrine in Hazen Paper v. Biggins since its verdict permits employers to evade the scope of the ADEA by applying employment decisions based on non-age based criteria that coincidentally correlate highly with age. The language of the ADEA supports much broader remedies than the Hazen Paper v. Biggins decision allows.  

·        Brendan Sweeney, Comment, “Downsizing” the Age Discrimination in Employment Act: The Availability of Disparate Impact Liability, 41 Vill. L REV. 1527 (1996).   

After Hazen Paper v. Biggins, 507 U.S. 604 (1993), federal courts have held that disparate impact is not available in ADEA cases since the ADEA statue only prohibits actions motivated by age and in a disparate impact claim, the employer’s action are motivated by factors other than age.  This goes against the Geller v. Markham, 635 F. 2d 1027 (2nd Cir. 1980) argument that extended Title VII’s disparate impact claims to the ADEA, holding that the language and purpose of Title VII and the ADEA are nearly identical.  Markham v. Geller, 451 U.S. 945 (1981) also overturned Geller.  

·        Tara-Ann Toppulo, Finding a hole in the ADEA: Allowing a Cause of Act for Age discrimination Among Employees Within the Age Protected Class, 29 Dayton L. REV. 169 (2003).  

Federal circuit court decisions are divided on whether employees over age 40 can bring a case of age discrimination against their employer when another group of employees within this rather wide age discrimination class, aged 40 and over, received benefits they are denied.  As case on point, Cline v. General Dynamics, 296 F3d 466 (6th Cir. 2002) held in favor of employees in their 30s when they were not afforded the same health care benefit.  Even though the Supreme Court overturned this decision in 2004 after Toppulo wrote this article, Toppulo’s argument underlines the idea that until a case reaches the Supreme Court, points of law in age discrimination are rather fluid.  

·        Bryan B. Woodruff, Unprotected Until Forty: The Limited Scope of Age Discrimination in Employment Act of 1967, 73 Ind. L. J. 1295 (1997-1998).

The ADEA protects only individuals age 40 and older from discrimination as noted in such cases as O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308(1996); however, the courts have found that individuals under age 40 cannot make claims under the ADEA even if ageism can single out any age-defined group or individual. 

Articles

·        Scott J. Adams, Age Discrimination Legislation and the Employment of Older Workers, 11 LAB. ECON.  at 219 (2004).

Before Congress amended the ADEA so that age discrimination in employment had no age limit, empirical studies showed that the ADEA increased the employment of workers in the protected classes, but in older workers not in the protected age range, the percentage of older workers declined. No data actually pointed to the increased hiring of older workers.

·        Peter H. Wingate et al, Organization Downsizing and Age Discrimination Litigation.  The Influence of Personnel Practices and Statistical Evidence on Litigation Outcomes. 27 LAW & HUM. BEHAV. (2003).

Researchers analyzed 115 federal cases dealing with age discrimination, disparate treatment allegations, and organizational downsizing wherein the court awarded the defendant summary judgment in 73 percent of the cases. Decisions were more likely to favor the defense when supervisors regularly performed formal performance appraisals and the companies had a definite layoff policy in place.

·        JOANNA LAHEY, State Age Protection Laws & the Age Discrimination in Employment Act,. NAT’L B. OF ECON. RES. (2006) (Dec. 16, 6:15 AM), http://www.nber.org/papers/w12048

Examination of statistical data drawn from 1968 to 1991 shows that age discrimination laws have unintended consequences.  Current population studies of white males aged 25-84 showed that employment of workers over age 50 actually dropped after Congress enacted the ADEA.  Moreover, hiring of older workers decreased in states that had their own age discrimination laws. 

·        David Neumark, Age Discrimination Legislation in the United States, 21 CONTEMPOR. ECON. POL’Y, at 297 (2003).

Empirical evidence suggests that enacting the ADEA has reduced the possibility that employers default on older workers retirement plans.  Economic motives and negative stereotypes of older workers explain age discrimination.  

Databases

In addition to the very thorough collection of statues and case law on age discrimination in the work place furnished by Lexus Academic, Campus Research, and Westlaw and an access to recent legislative history online on Lexus Congressional, one database, Age Line, covers age-related issues: Age Line. 

·        Age Line (EBSCO).

EBSCO’s Age Line database focuses on issues concerning individuals over age 50, its content drawn from different disciplines, including public policy, economics, and psychology.  Age Line’s Thesaurus on Aging serves as an index for terms, and abstracts accompany each citation.  EEOC’s publishing of settlement claims in age discrimination cases makes for interesting reading.

International Legal Materials

·        ZMIRA HORNSTEIN. OUTLAWING AGE DISCRIMINATION: FOREIGN LESSONS, U.K. CHOICES (2001).

Hornstein summarizes age discrimination law in Australia, Canada, and the U.S. 

·        THE LAW ON AGE DISCRIMINATION IN THE E.U. (Malcolm Sargeant (ed. 2008).

Sargeant covers age discrimination law and legislation in Germany, France, Ireland, Italy, Hungary, the Netherlands, Finland, and the U.K. 

·        DANIEL VAUGHAN-WHITEHEAD.  WORK INEQUALITIES IN THE CRISIS [electronic resource].  EVIDENCE FROM EUR. (2011).

Vaughan-Whitehead covers age and gender discrimination law trends in 30 European countries and summarizes age discrimination law cases in 14 European countries.

Interdisciplinary Information: Non-Legal

Books

·        AGE DISCRIMINATION & DIVERSITY; MULTIPLE DISCRIMNATIONS FROM AN AGE PERSPECTIVE (Malcolm Sargeant. ed., Cambridge U. Pub. 2011). 

This collection of essays theorizes that discrimination against older workers results from the inability to recognize their diversity; however, such discrimination usually discriminates against multiple diversities—age and/or gender, sexual orientation, ethnicity, class, or disability. 

·        DISABILITY AND AGE DISCRIMINATION: PERSPECTIVES IN LAW AND PSYCHOLOGY (Richard L. Wiener, Steven L. Willborn ed., Springer, 1st ed. 2010).

Supervisors and younger colleagues negative stereotypes of older workers contribute to age discrimination, so Wiener and Willborn attempt to apply a ‘social analytic jurisprudence framework” that tests legal assumptions against their behavior.  They also examine the historical background and psychological origins of age discrimination and note the limits of the ADEA.

·        RAYMOND GREGORY, AGE DISCRIMINATION ON THE AMERICAN WORKPLACE (Rutgers U. Pub. 2001).  

Gregory, an attorney specializing in employment law, examines ways the workplace stereotypes older workers and shows how to identify age-based discrimination in hiring, early retirement programs, demotions, and transfers.

·        JOHN MACNICOL, AGE DISCRIMINATION: AN HISTORICAL AND CONTEMPORARY ANALYSIS (Cambridge U. Press 2006). 

Interdisciplinary study outlines the history of age discrimination in employment and health care in the U.K. and the U.S. since the 1930s.

 A special thanks to the Baylor University Law School Library for the use of its resources and the invaluable help of its librarians. 

Require Additional Online Legal Help?

McGinley  Library patrons who also hold a Waco-McLennan Public Library Card may access a Legal Collection of subscription-databases.  Other Texas library card holders may also find similar material via TexServe-participating libraries.  Additionally, Texans can turn to several free advice Websites, including the following Webpage:

http://www.freelegalaid.com/nav/texas/general-legal-resources/resource/texaslawhelporg

The legal links furnished on this Web page represent the opinions of their authors, so they complement—not substitute—for an attorney’s advice.