A protected class everyone eventually joins, and a causation standard of its own.
Esshaki Legal Media TeamCurrent as of September 2021
Federal age discrimination law protects workers at or above a threshold age from
discrimination in employment decisions.
Causation. Unlike some other federal statutes, the federal age statute
requires but-for causation — the plaintiff must show the adverse action would not
have occurred but for age. A mixed-motive instruction is unavailable. Many state
statutes use a more permissive motivating-factor standard, which is a reason age
claims are frequently brought under state law.
Comparators. Replacement by a substantially younger worker supports an
inference, whether or not that worker is outside the protected class.
Code words. References to energy, fresh perspective, digital native,
long-tenured, overqualified, and succession planning appear repeatedly in these
cases. They are not automatically unlawful and they are always quoted.
Reductions in force generate the most age litigation, because selection
criteria correlate with tenure and compensation. Cost-based selection that
correlates with age is defensible in principle and difficult in practice.
Benefit plans. Older worker benefit protections restrict age-based
distinctions in benefits, with limited cost-justification defenses.
Releases. Waivers of age claims require statutory formalities — extended
consideration and revocation periods, written advice to consult counsel, and
group termination disclosures. Defects void the age waiver specifically.