In a 5-4 holding, the Supreme Court ruled that plaintiffs in a "mixed motive" age discrimination case must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was a motivating factor in that decision. Gross v. FBL Financial Services, #08-441, 129 S.Ct. 2343, 2009 U.S. Lexis 4535.
     EEOC challenges a fire district policy that disallowed credit toward a pension for firefighters over 65. The district amended its program in late 2006 to allow firefighters to earn service credit without regard to age, but did not allow retroactive credits. EEOC v. Eaton’s Neck Fire Dist., #08-5089, complaint (E.D.N.Y. 12/18/08).
     Section 623(d) of the ADEA specifically prohibits retaliation by non-federal employers. Initially some courts ruled that federal employees lacked a remedy for retaliation. The Supreme Court specifically overruled those cases. Gomez-Perez v. Potter, #06-1321, 128 S.Ct. 1931 (2008).
     EEOC revises ADEA regulations to conform to General Dynamics Land Sys. v. Cline, 540 U.S. 581 (2004); the 6-to-3 holding had rejected the claims of employees in their 40s who would not receive the same retirement health benefits as the employer's older employees. Coverage Under the Age Discrimination in Employment Act, EEOC Amendment to 29 C.F.R. Part 1625, 72 (129) Fed. Reg. 36873 (7/6/07).
     City's "Leave Donation Program," under which employees can donate excess leave to coworkers who have medical problems, violates the ADEA because workers age sixty or older could not participate. EEOC v. City of Independence, #05-4489, 2006 U.S. App. Lexis 31499 (8th Cir. 2006). [N/R]
     Because a sheriff's benefits plan resulted in younger workers who were disabled to receive higher benefits than older workers would receive, the EEOC established a prima facie violation of the ADEA, because the plan was facially discriminatory. EEOC v. Jefferson Co. Sheriff's Dept., #03-6437, 467 F.3d 571, 2006 U.S. App. Lexis 26981, 99 FEP Cases (BNA) 180, 2006 FED App. 0405P (6th Cir.). {N/R}
     A federal employee that elected to pursue an age discrimination appeal before the Merit Systems Protection Board is obliged to follow that route through to completion, to the exclusion of any other remedy that otherwise might be available. Stoll v. Principi, #05-2483, 2006 U.S. App. Lexis 13962 (1st Cir. 2006). {N/R}
      Federal court upholds a proposed EEOC Regulation [68 (134) Fed. Reg. 41542-49] that will allow employers to provide retirees 65 and older with health benefits that are inferior to the benefits given to younger retirees. AARP v. EEOC, #05-CV-509, 2005 U.S. Dist. Lexis 21495 (E.D.Pa. 2005), relying on language in National Cable v. Brand X, 125 S.Ct. 2688 (2005).
     The EEOC notes that rising health care costs and a larger numbers of workers nearing retirement age created an incentive for employers to eliminate all health benefits for retirees. {N/R}
    Sixth Circuit rejects an EEOC age discrimination charge brought against a county because disability pensions are restricted to workers under age 55 and the disabled applicant was a 61 year-old deputy sheriff. EEOC v. Jefferson Co. Sheriff's Dept., #03-6437, 424 F.3d 467, 2005 U.S. App. Lexis 20053, 2005 FED App. 0397P, 96 FEP Cases (BNA) 801 (6th Cir. 2005). {N/R}
     A retirement incentive plan that excludes persons over age 65 violates the Age Discrimination in Employment Act and is discriminatory on its face. Jankovitz v. Des Moines Sch. Dist., #04-3401, 421 F.3d 649, 96 FEP Cases (BNA) 695, 2005 U.S. App. Lexis 18557 (8th Cir. 2005). {N/R}
     Federal appeals panel rejects an age bias suit where a city worker failed to establish that she was subjected to a severe or pervasive hostile work environment, because of her superior's "silent treatment" of her and various age-related remarks. MacKenzie v. C&C of Denver, #02-1468, 414 F.3d 1266, 2005 U.S. App. Lexis 14225, 96 FEP Cases (BNA) 357, 16 AD Cases (BNA) 1616 (10th Cir. 2005). {N/R}
     Appeals court declines to enforce a release and waiver of rights under the ADEA because the wording was unclear and the employer declined to explain what it meant. Thomforde v. IBM, # 04-1538, 406 F.3d 500, 2005 U.S. App. Lexis 7592, 95 FEP Cases (BNA) 1145 (8th Cir. 2005). [2005 FP Aug]
     U.S. Supreme Court rules 5-to-3 that employers can be sued under the ADEA for employment actions that have a disparate impact on older workers. However, the Jackson, Mississippi, police officers and dispatchers who brought this particular case failed to prove their claim. Smith v. City of Jackson, #03-1160, 2005 U.S. Lexis 2931, 125 S.Ct. 1536 (2005). {N/R}
     Employer was not entitled to terminate a 73 year-old driver because a new insurance policy excluded drivers over age 70. Enlow v. Salem-Keizer, #02-35881, 371 F.3d 645, 2004 U.S. App. Lexis 11428, 93 FEP Cases (BNA) 1601 (9th Cir. 2004). {N/R}
     EEOC approves a final regulation that allows employers to reduce or end health benefits when a retiree becomes eligible for Medicare or under a comparable state retiree health plan, without violating the Age Discrimination in Employment Act. Age Discrimination in Employment Act: Retiree Health Benefits, 29 CFR Parts 1625 & 1627, RIN 3046-AA72, 72 (40) U.S. Law Week 2640 (2004). {N/R}
     Supreme Court holds that an employer may provide different benefits for retired workers, for those over age 50, and those under 50. The ADEA, which protects workers who are age 40 and older, offers no protection for younger workers against enhanced benefits for older employees, because it was enacted to protect older, not younger, workers. Gen. Dynamics Land Sys. v. Cline, No. 02-1080, 2004 U.S. Lexis 1623, 72 U.S.L.W. 4168 (2004). {N/R}
If an employee cannot show lost wages, he cannot recover any damages in an ADEA action because "the ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress." Beverly v. Desmond Hotel, #02-6712, 2004 U.S. Dist. Lexis 353 (E.D. Pa. 2004). {N/R}
    A divided Fifth Circuit holds that age-differentiated pay increases were not subject to challenge under a "disparate impact" test, but could be challenged under a "disparate treatment" theory. Smith v. City of Jackson, MS, No. 02-60850, 2003 U.S. App. Lexis 23125 (5th Cir. 2003). [2004 FP Jan]
     Reverse discrimination: a divided Sixth Circuit has held that the ADEA allows younger workers to sue when older employees were given benefits they are denied. The U.S. Supreme Court has agreed to hear an appeal. Cline v. General Dynamics, 296 F.3d 466, 2002 U.S. App. Lexis 14643, 2002 FED App. 0242P (6th Cir.); cert. granted, 123 S.Ct. 1786, 2003 U.S. Lexis 2949 (2003). {N/R}
     Federal appeals court declines to overturn a $246,774 ADEA verdict because the plaintiff's economic expert allegedly lacked "sufficient facts and data, scientific principles, and reliable methods" to render a valid opinion. Hartley v. Dillard's, #02-1298, 2002 U.S. App. Lexis 23727 (8th Cir. 2002). {N/R}
     The EEOC plans to allow ADEA complainants to file a lawsuit, 60 days after filing of a charge with the Commission, and without waiting for a Notice of Dismissal or Termination to be issued. Procedures - Age Discrimination in Employment Act, 29 CFR Part 1626, 67 (155) Federal Register 52431-52433 (Aug. 12, 2002). {N/R}
     Employers cannot be sued for a suicide following an allegedly age-biased reduction in the workforce. Kulling v. Grinders, #99-74339, 115 F.Supp.2d 828, 2000 U.S. Dist. Lexis 15134 (E.D. Mich.). [2001 FP 19]
     $5,956,751 in back pay and statutory penalties awarded to a terminated executive (then 62 years-old). Jury found the defendant company wanted a younger image. Riseman v. Advanta Mortgage, unreported, verdict described in The Legal Intelligencer 12/7/2000 (E.D. Pa.). {N/R}
     Older workers who did not receive an offer of a severance package did not suffer an adverse employment action as long as the employer retained their services. Cooney v. U.P.R.R., #No 00-3425, 258 F.3d 731, 2001 U.S. App. Lexis 16271, 86 FEP Cases (BNA) 829 (8th Cir. 2001). {N/R}
     Two Federal Circuits rule against public employees who brought civil rights suits to set aside transfers allegedly motivated by advancing age. ADEA, not Sec. 1983, provides the appropriate remedy for age based discrimination claims. Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467 (1st Cir. 1990).
     U.S. Supreme court upholds arbitrability of statutory employment discrimination claims (under the A.D.E.A.); employee waives right to sue in court. Gilmer v. Interstate/Johnson Lane Corp., 111 S.Ct. 1647 (1991). {N/R}
     Juries awarding substantial verdicts for emotional distress in age discrimination suits. Shapiro v. Halmar, Hampden Co. Super. Ct. #84-1836 (1988).
     Federal appeals court establishes formula for computing damages in age discrimination cases. Wages earned in other employment are deducted from double back pay award. Kossman v. Calumet County, 849 F.2d 1027 (1988).
     Firefighter who was denied promotion due to age must receive all the benefits of higher rank; no need to demote others. Civil Service Cmsn. of Waterbury v. Cmsn. of Human Rights and Opportunities, 195 Conn. 226, 487 A.2d 201 (1985).
     Federal court upholds an EEOC subpoena for allegedly irrelevant documents in an ADEA inquiry. "A party may not defeat an agency's authority to investigate by raising what could be a defense if the agency subsequently decides to bring an action against the party." EEOC v. Delaware State Police, 618 F.Supp. 451, 1985 U.S. Dist. Lexis 15275, 39 FEP Cases (BNA) 81 (D. Del.). {N/R}