Age Discrimination

A number of landmark cases have interpreted the ADEA since its passage. Western Air Lines v. Criswell, 472 U.S. 400, 105 S. Ct. 2743, 86L. Ed. 2d 321 (1985), set out the guidelines for defending an age limit based on the BFOQ exception. Western required flight engineers, who are members of the flight crew but generally do not operate flight controls, to retire at age 60. When this policy was challenged, the airline maintained that the age limit was a BFOQ necessary to ensure safety. The Supreme Court disagreed, and in a unanimous decision announced a two-pronged test to be applied when evaluating a BFOQ based on safety: (1) whether the age limit is reasonably necessary to the overriding interest in public safety; and (2) whether the employer is justified in applying the age limit to all employees rather than deciding each case on an individual basis.

In another case the same year, the Supreme Court found TWA guilty of age discrimination for refusing to transfer pilots to the position of flight engineer after they reached age 60, the Federal Aviation Administration's (FAA's) mandatory retirement age for pilots (Trans World Airlines v. Thurston, 469 U.S. 111, 105 S. Ct. 613, 83 L. Ed. 2d 523 [1985]). TWA had allowed younger pilots who had become disabled to transfer automatically to the position of flight engineer, but did not allow pilots and copilots past the age of 60 to do the same. The Court held that the airline must give the same opportunity to retiring pilots and copilots as it had given to younger disabled pilots. However, the Court denied the pilots' request for double damages, which are allowed in cases of "willful violation" of the ADEA, stating that a violation is willful only if the employer knew that its conduct was prohibited by the ADEA or showed a "reckless disregard" for whether the act applied.

Older workers seeking redress under the ADEA received mixed opinions in 1989. Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158, 109 S. Ct. 2854, 106 L. Ed. 2d 134 (1989), overturned a series of courts of appeals decisions as well as EEOC and LABOR DEPARTMENT regulations that required employers to justify any age-based distinctions in employee benefit plans by showing a "substantial business purpose." Betts shifted the BURDEN OF PROOF to the plaintiff to show that the disputed plan was a "subterfuge" for discrimination.

Congressional response to Betts was a compromise between employee advocates and business interests. A 1990 amendment to the ADEA, known as the Older Workers Benefit Protection Act (OWBPA) (29 U.S.C.A. § 626), prohibits discrimination against older employees in the provision of fringe benefits unless the benefit differences are due to age-based differences in cost.

Shortly after the Betts decision, the Supreme Court relaxed the procedural rules governing class actions alleging age discrimination, in Hoffmann-LaRoche v. Sperling, 493 U.S. 165, 110S. Ct. 482, 107 L. Ed. 2d 480 (1989). The Sperling decision made it easier for plaintiffs to join a CLASS ACTION suit against an employer after the suit has been filed.