Proof of Disparate Treatment under the Age Discrimination in Employment Act: Variations on a Title VII Theme

The Age Discrimination in Employment Act (ADEA) was enacted in 1967 and substantially amended in 1974 and 1978. Generally stated, the ADEA prohibits employer discrimination by public and private employers (persons having twenty or more employees), labor unions, and employment agencies. Protection against age discrimination is granted, however, only to employees and applicants between the ages of forty and seventy. It is illegal to discriminate on the basis of age against persons within the forty-to-seventy age group regardless of whether the person favored by the discrimination is within or without the protected age group or is younger or older than the plaintiff. The ADEA does provide as defenses age distinctions based on a bona fide occupational qualification reasonably necessary to the normal operation of the particular business and age distinctions made pursuant to bona fide seniority systems. The Act also permits allocation of benefits according to bona fide retirement and insurance programs. In addition, the ADEA specifically permits employees to be disciplined for good cause and permits distinctions based on reasonable factors other than age. The ADEA has its legislative roots near those of Title VII of the Civil Rights Act of 1964. Much of the operative, substantive language of the ADEA was drawn from that previously found in Title VII. Because of this similarity the courts have indicated that as a general proposition Title VII and ADEA litigation should follow a parallel course