ADEA plaintiffs have two routes through which they can attempt to make their cases of unlawful discrimination. Plaintiffs can present direct evidence of discrimination, or they can proceed based on indirect evidence by meeting the steps set forth in the Supreme Court’s application of Title VII in McDonnell Douglas v. Green (1973) and Texas Department of Community Affairs v. Burdine (1981), cases that were resolved under Title VII but which offer protections similar to those under the Age Discrimination in Employment Act. Insofar as the protections afforded by Title VII and the ADEA are very much alike, judicial analyses often rely on analogous reasoning such that in order to be actionable, qualified employees must be over the age of 40, must have been treated less favorably than others not in the protected class, must have suffered an adverse employment action, and must file suit within 90 days of receiving right-to-sue letters from the EEOC. Once employees present prima facie cases, employers can seek to rebut them by providing legitimate nondiscriminatory reasons for acting.
Plaintiffs must first establish that they have prima facie cases of age discrimination by establishing that they were members of the protected class by being at least 40 years of age; were either qualified for the jobs for which they were not hired or met employers’ reasonable job expectations in cases of dismissals, transfers, or demotions; suffered adverse employment actions; and were replaced by, or treated less favorably than, someone substantially younger than themselves. While there is no rigid standard for how significant the age difference must be to establish this last element of prima facie cases, courts generally define substantially younger as approximately 10 or more years younger than the plaintiffs. In addition, the Supreme Court in O’Connor v. Consolidated Coin Caterers Corporation (1996) recognized that in establishing a prima facie case, it is irrelevant if a plaintiff lost out to another person in the protected Age Discrimination in Employment Act class (who was at least 40 years of age), in part because the key remains that the challenged action was taken because of the complainant’s age.
As noted, once plaintiffs present prima facie cases of discrimination based on age, the burden shifts back to employers to produce legitimate, nondiscriminatory reasons for their adverse employment actions. At the final stage, plaintiffs have the opportunity to prove that their employers’ reasons were not true and were rather pretexts for unlawful age-based discrimination.
Two appellate court rulings illustrate the application of the McDonnell Douglas–Burdine test in higher education Age Discrimination in Employment Act claims. In Lewis v. St. Cloud State University (2006), the Eighth Circuit upheld the removal of the plaintiff as dean of the college of social sciences because he failed to establish a prima face case, because his permanent replacement was less than three years younger than he was. The court noted that even if the plaintiff had met his initial burden, university officials articulated three legitimate, nondiscriminatory reasons for his removal, all of which were related to deficiencies in his performance as dean. Consequently, the court found that the plaintiff was unable to show that the university’s stated reasons were pretextual or that his removal from the administrative position resulted from age discrimination.
Another federal appellate court upheld the demotion and transfer of the chief operating engineer in a university’s heating plan where he was unable to establish that explanations provided by university officials were pretextual. While the engineer alleged that his supervisor asked him when he was going to retire and told him he was too old to continue working in his job assignment, the court was of the opinion that the university’s action was based on the recommendation of an independent investigator, and a merit board ruled the university’s action adequately supported.
There are two basic types of claims under the Age Discrimination in Employment Act. Disparate impact cases challenge employment policies or practices that on the surface appear nondiscriminatory but adversely and significantly affect employees or applicants who are protected by the Age Discrimination in Employment Act. For instance, the Seventh Circuit upheld a private K–12 school’s policy of hiring less experienced, and therefore generally younger, teachers, because they were more affordable on its salary schedule linking wages to years of teaching experience. Despite the EEOC’s claim that the low minimum salary limit excluded from employment consideration a disproportionate percentage of applicants over the age of 40, the court ruled that the policy was economically defensible and reasonable. At the higher education level, two federal appellate courts upheld university compensation plans that adversely impacted older faculty. In Davidson v. Board of Governors of State Colleges and Universities for Western Illinois University (1990) and MacPherson v. University of Montevallo (1991), the courts upheld university compensation plans that based salaries for newly hired faculty and pay raises for current faculty on market value, thereby causing some older faculty to earn less than their younger colleagues.
More common in the higher education setting are disparate treatment claims in which protected or prospective employees allege that educational institutions treated them differently on account of their ages. ADEA claims in higher education frequently challenge negative institutional actions involving hiring, tenure, academic promotion, and the nonrenewal of employment contracts. Particularly in the area of tenure and academic determinations such as promotion in rank, courts are reluctant to review the merits of academic decisions absent clear evidence of unlawful agebased decisions. In this regard, courts typically readily defer to institutional decision makers insofar as they recognize that academicians are better suited to make subjective judgments involving the review of scholarship, university service, and teaching.
A good illustration of an Age Discrimination in Employment Act challenge to an employee’s dismissal can be found in Wichmann v. Board of Trustees of Southern Illinois University (1999). The Seventh Circuit upheld a jury verdict that university officials willfully violated the Age Discrimination in Employment Act in dismissing a 48-year-old managerial employee who had glowing evaluations as part of a reduction- in-force plan for a program that ultimately was not eliminated. The program’s accountant testified that the accounting was unreliable, because the accounting methods were allegedly changed to make apparent surpluses disappear; the deciding administrator stated in a meeting less than a month after the dismissal decision that “in a forest you have to cut down the old, big trees so the little trees underneath can grow” (p. 796); and the dismissed employee’s duties were dispersed among other employees, most of whom were considerably younger than he was at the time he was released from his job.