In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims.  The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.
Continue Reading

On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace.
Continue Reading

In February of 2016, the Equal Employment Opportunity Commission (“EEOC”) released detailed information and statistics summarizing the charges of discrimination that the agency received throughout its 2015 fiscal year. The recently released report provides helpful information regarding the types of charges that employees filed in the 2015 fiscal year, which ran from October 1, 2014 to September 20, 2015.
Continue Reading

On December 7, 2015, the United States District Court for the Western District of Pennsylvania permitted a plaintiff to pursue discrimination claims alleging that she had been forced to retire as a result of her age and disability status—despite the fact that she had voluntarily agreed to retire as part of a union grievance settlement. This case, Melan v. Belle Vernon Area School District, serves as a warning to employers settling grievances under a collective bargaining agreement that implicate employees’ federally protected rights
Continue Reading

In the past few months, the EEOC has filed two federal lawsuits challenging what might be considered “run of the mill” separation agreements. Such separation or severance agreements have become a relatively common practice when the employment relationship is terminated, as the employer can offer a severance payment in exchange for a broad release of potential claims.
Continue Reading

The EEOC recently voted to move forward on new regulations that will likely make it easier for older workers to bring disparate impact claims, and harder for employers to defend against such claims.  The EEOC is taking the position that employers have to prove their choices are reasonable when adopting policies that might adversely affect older workers, and the rules provide several guidelines for consideration.  In light of the new regulations, employers should revisit the factors used in making hiring, promotion, and termination decisions and take steps to minimize the use of subjective criteria and procedures.  Employers should also consider the likelihood that litigation costs may increase as more cases may survive summary judgment, and consult with legal counsel to determine whether additional precautions must be put into place to proactively address potential disparate impact issues.


Continue Reading

In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors.  These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.

Continue Reading

Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc.  In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age.  The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.


Continue Reading