Axed at the Top: The Case for Modernizing our Age Discrimination Laws

In 2009, Arizona firefighter captains John Guido and Dennis Rankin were terminated by the Mount Lemmon Fire District at ages 46 and 54, respectively.  As the two oldest members of the fire district’s 11 full-time employee team, Guido and Rankin suspected their termination decision was driven—at least in part—by their age. As a result, they filed age discrimination complaints with the Equal Employment Opportunity Commission (EEOC) and subsequently filed suit against their former employer for violating the Age Discrimination in Employment Act of 1967 (ADEA). The case moved swiftly through the lower courts before it was argued in the United States Supreme Court on Oct 1, 2018.  

At issue was not simply whether Mount Lemmon Fire District improperly terminated two of its employees; instead, the sticking point was about the definition of “employer” stated in Section 630b of ADEA: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: provided that prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States” [1]. It was now up to the Supreme Court to decide whether the twenty-employee minimum applied solely to private companies or to all enterprises [2].  In other words, are privately owned businesses and publicly operated groups both subject to this regulation? 

This question posed by Mount Lemmon Fire District v. Guido is a microcosm of a much bigger issue. In recent years, the United States Supreme Court has been frequently tasked with filling in the holes left by incomplete legislation, a task of interpretation that readily encroaches on the law-writing duties entrusted to the Congress by the Constitution. Especially in the area of age discrimination regulation, the task of flushing out crucial details has been relegated to the courts.  In order to properly understand this issue, some terms need to be defined.

Contrary to popular belief, the landmark Civil Rights Act of 1964 achieved more than just the establishment of civil rights for African Americans. When President Johnson signed the legislation during a televised address to the nation, the United States also took a big step forward in terms of labor law for all Americans. In particular, Title VII of the Civil Rights Act—“Equal Employment Opportunity”—prohibited discrimination by certain employers on the basis of race, color, religion, sex, or national origin for the first time. More broadly, the passage of Title VII also opened up a national discussion on barriers to opportunity, a discussion that eventually led to the passage of the Age Discrimination in Employment Act of 1967.  In the preamble of ADEA, Congress recognizes the problem confronting American society. “In the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs” [3].  While the ADEA widened the scope of the original Title VII regulation, it is important to note that both laws contain a provision known as the Bona Fide Occupational Qualification (BFOQ) that details the circumstances in which discrimination is permitted.

However, when litigation on the aforementioned regulations began to reach the courts in the early 1970s, there was no model for how to interpret these new rules.  In McDonnell Douglas Corp v. Green, the Supreme Court had to grapple with this issue for the first time and needed to answer the following question: to whom do we assign the burden of proof when only circumstantial evidence of discrimination is presented, and inference is expected?  The 1973 lawsuit, brought by black civil rights activist Percy Green, alleges that the aircraft manufacturer McDonnell Douglas Corporation prevented him from obtaining employment opportunities at the company due to his race and civil rights activism.  This case served as the impetus for the McDonnell Douglas burden-shifting framework, which are a set of guidelines that serve as one of two adjudication processes for not only allegations of racial discrimination, but also for all other aspects of Title VII, including age discrimination.  “Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination.  Once the prima facie case is established, in order to avoid a verdict for the plaintiff, the employer must articulate ‘some legitimate, nondiscriminatory reason’ for its decision.  Finally, at the third stage, the plaintiff must, in the words of the McDonnell Douglas court, ‘be afforded a fair opportunity to show that [defendant’s] stated reason for [plaintiff’s] rejection was in fact pretext’” [4].  The McDonnell Douglas guidelines clearly delineates how the burden of proof shall shift in cases where no direct evidence is presented by the plaintiff. 

In contrast, Price Waterhouse v. Hopkins (1989) introduced the mixed-motive framework, entailed by a set of directions for adjudicating Title VII cases where direct evidence is presented.  The case inevitably pits Ann Hopkins against her former employer, accounting firm Price Waterhouse, in an argument over gender stereotyping and employee promotion opportunities within organizations. Aside from the Court’s commentary on sex discrimination, the Court also outlined the mixed-motive framework.  In the McDonnell Douglas decision, the court held that “Title VII required a single discriminatory motive for the employment action in order for the plaintiff to establish a prima facie case” [5]. But this proved insufficient for the Price Waterhouse case, where multiple factors were at play in the employment decision. How was the Court to interpret which factors tipped the balance against Ms. Hopkins? To resolve this, “the Court held that a plaintiff could succeed on a Title VII claim if the plaintiff could show that an impermissible reason was a motivating factor in the employment decision. In other words, even if the defendant had a legitimate reason for the employment action, it could still be found liable if the plaintiff could show that the defendant also considered an impermissible factor at the time the decision was made” [5].       

Since McDonnell Douglas Corp v. Green and Price Waterhouse v. Hopkins, Title VII has evolved into a much more complex framework in recent years. From Meacham v. Knolls Atomic Power Laboratory (2008) to Mount Lemmon Fire District v. Guido, the Supreme Court has ruled that the main burden of proof rests on the defendants, a rather stark contrast to our founding platitude of “innocent until proven guilty.” The entire concept of proof is left largely untouched in the original text of Title VII and ADEA, yet it is crucial to define this concept for the Supreme Court to operate. It is not transparent whose responsibility it is to clarify terms in the short run, but in the long run, it is unsustainable for the justice system to continually fill in the shortcomings of legislative language.  Moreover, such acts lie outside the court's’ purview and to an exponentially greater degree as time passes—especially in the area of age discrimination.  In an era when people's’ life spans are lengthening, and the dockets of our nation’s courts are being flooded with age-related lawsuits, Congress must return to the drawing board and modernize our age discrimination laws. A lot has changed since 1967 when the ADEA was first signed into law. More than 50 years later, perhaps the ADEA itself should change as well.     

Sources:

[1] The Age Discrimination in Employment Act of 1967, 29 C. F. R. § 630 (1968).

[2] Schmitt, T., & Idicula, I. Mount Lemmon Fire District v. Guido. Cornell Law School Legal Information Institute, Retrieved from https://www.law.cornell.edu/supct/cert/17-587.

[3] The Age Discrimination in Employment Act of 1967, 29 C. F. R. § Preamble (1968).

[4] Tristin K. Green, Making Sense of the McDonnell Douglas Framework: Circumstantial Evidence and Proof of Disparate Treatment under Title VII, 87 Calif. L. Rev. 983 (1999).

[5] Picco, K. (2011). The Mixed-Motive Mess: Defining and Applying a Mixed-Motive Framework. ABA Journal of Labor & Employment Law, 26(3), 461-480. Retrieved from http://www.jstor.org/stable/41320591