EEOC Stats Show Spike in Age Discrimination Charges 

By Alan Smith

For years, management attorneys have predicted that a graying workforce would be accompanied by a spike in age discrimination claims. Those predictions have been largely unsubstantiated up until this point. But enforcement statistics released by the Equal Employment Opportunity Commission (EEOC) on March 11, 2009, suggest that they are on the mark.

All of the main categories of charge filings with the EEOC increased, according to the fiscal year 2008 data, but charges based on age and retaliation had the largest annual increases, the agency noted. The number of age discrimination claims rose from 19,103 in 2007 to 24,582 in 2008, while retaliation claims rose from 26,663 to 32,690, just hundreds shy of overtaking the perennial No. 1 type of charge filed with the EEOC—race discrimination, which rose to 33,937 charges. The figure for age discrimination charges is particularly striking, given that only 16,548 age discrimination charges were filed in fiscal year 2006.

Why the Spike?

In a release, the EEOC noted that the rise in charge filings may be attributable to many factors, “including economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of the law, EEOC’s focus on systemic litigation and changes to EEOC’s intake practices.”

Joe Beachboard, an attorney at Ogletree Deakins in Los Angeles, thinks there is another reason for the rise in age discrimination claims. Speaking at the Society for Human Resource Management Employment Law and Legislative Conference in Washington, D.C., on March 10, 2009, Beachboard highlighted some surprisingly employee-friendly decisions by the Supreme Court, decisions that have paved the way for an influx of age discrimination claims.

“Many believe that age discrimination is the fastest growing area of discrimination law,” Beachboard remarked. And yes, demographics certainly are a factor, he noted, beginning his discussion by noting that the Census Bureau estimates that there will be 71.5 million people in the United States who will be over the age of 65 by 2030, more than twice the 35 million over the age of 65 in 2000. But Beachboard said that “age discrimination is really different from other types of discrimination,” explaining that age discrimination usually “is not based on dislike for individuals in that category.”

The Downside of Higher Pay

Beachboard pointed to a survey of 2,928 executives that showed their take on what drives age discrimination: 45 percent said customer preference, 28 percent pointed to higher compensation, 20 percent said rising health care costs and 7 percent mentioned technology. Lump higher comp and health costs together under the broader category of total compensation, and that percentage—48 percent—would be the number one reason. Notice anything missing from the executives’ response? They didn’t say the reason for age discrimination was hostility toward older workers.

Instead, age discrimination more often arises from institutional arrangements that restrict the employment of older workers indirectly, the kind of unintentional arrangements that would more typically give rise to claims of disparate impact discrimination, rather than disparate treatment.

While disparate impact claims have existed for years under Title VII, which prohibits discrimination based on race, color, sex, national origin and religion, the viability of disparate impact claims under the Age Discrimination in Employment Act (ADEA) was uncertain until the Supreme Court’s decision in 2005 in Smith v. City of Jackson (544 U.S. 228 (2005)). In this decision, the Supreme Court established that employees can bring an ADEA claim challenging an employer’s neutral practice that has a disproportionately negative impact on persons age 40 and above. The city had made changes to its compensation package that adversely affected older employees—it hadn’t intended to discriminate against older workers though. Instead, the city had discovered that surrounding communities paid their police more and that its younger officers in particular were paid less than in other communities. When Jackson increased the officers’ pay, older workers wound up with a smaller percentage increase in their compensation and cried foul, bringing a disparate impact claim.

Beachboard said that the Supreme Court’s liberal justices—Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer—emphasized the similarities between Title VII and the ADEA and determined that the same theories of liability are applicable under both.

Three conservative justices—Justices Anthony Kennedy, Clarence Thomas and Sandra Day O’Connor—weren’t persuaded, concluding that discriminatory intent was required in age discrimination claims. The chief justice at the time, William Rehnquist, did not participate in the decision, which made Justice Antonin Scalia the tiebreaker.

Scalia surprised everybody by writing separately and saying that the EEOC had looked at this issue in the past and concluded that disparate impact claims could be brought under the ADEA. That was good enough for Scalia, Beachboard said.

The Supreme Court then made it easier to bring ADEA claims in 2008, ruling that the employer bears the burden of showing that a challenged employment decision was based on a reasonable factor other than age (Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008)).

Upcoming ADEA Claim

The high court’s ruling in an upcoming case might result in even more ADEA claims. The court has announced it will decide whether ADEA plaintiffs may bring a mixed-motive case, rather than a pretext case, without direct evidence of discrimination in Gross v. FBL Fin. Servs. Inc. The Supreme Court already has swung the door wide open to mixed-motive cases without direct evidence under Title VII in Desert Palace v. Costa (539 U.S. 90 (2003)). Mixed-motive cases are much easier to bring than pretext cases, Beachboard said, noting that with mixed-motive cases, the plaintiff does not have to establish a prima facie case of discrimination and then show that any reason given by the employer is pretext for discrimination. With mixed-motive cases, plaintiffs instead can get before juries more easily by arguing that an impermissible motive played a motivating role. Employers in mixed-motive cases often are left with only the defense that they would have made the same decision anyway. While damages can be lower in mixed-motive cases, the ease of getting before a jury in them makes them attractive for plaintiffs, he noted.

How the Supreme Court decides Gross might depend on to what extent it thinks Title VII and the ADEA are similar. The distinctions between the laws are clear to Beachboard. He reminded conference attendees that age was not included in Title VII and pointed out that the ADEA has a defense unavailable under Title VII, the ADEA’s “reasonable factors other than age” provision.

For now, employers will have to wait and see whether the Supreme Court, whose oldest justice (Stevens) will turn 89 in April, will make it easier for plaintiffs to bring age discrimination claims. If Gross winds up being yet another closely decided opinion, the tie-breakers ironically might wind up being the venerable institution’s newest and youngest justices: Justice Samuel Alito Jr. and Chief Justice John Roberts Jr.

Allen Smith, J.D., is manager of workplace law content for SHRM.