Judicial application of the Age Discrimination in Employment Act of 1967 ("ADEA") may be the most divergent of the employment discrimination laws because the ADEA is a hybrid of two statutes: Title VII of the Civil Rights Act of 19642 ("Title VII") and the Fair Labor Standards Act of 1938 ("FLSA"). The ADEA incorporates only selected portions of each of these statutes. For example, the general prohibition against age discrimination contained in the ADEA parallels the substantive provisions of Title VII, while the remedial provisions mirror, at least in part, the FLSA. Courts, however, have generally approached the ADEA in the same way as they approach Title VII because of the statutes' shared goal of prohibiting discrimination.
However, this similarity of approach changed when Congress passed the Civil Rights Act of 1991, amending Title VII and other civil rights laws. Although the amendments to Title VII were broad, Congress made only one express change to the ADEA's procedural provisions. The courts, therefore, have been left to interpret congressional silence with respect to the ADEA's substantive provisions, such as the applicability of Price Waterhouse v. Hopkins, a Supreme Court case overruled in part by the 1991 amendments to Title VII, in "mixed-motive" discrimination cases.
The authors of this article argue that Price Waterhouse still applies to ADEA cases despite the fact that the Civil Rights Act of 1991 overruled parts of that decision as applied to Title VII. The narrower purpose of the ADEA itself, as described by the Supreme Court in Hazen Paper Co. v. Biggins, and the ADEA's origins in the FLSA, differentiate the ADEA from Title VII, especially with respect to attorney fees, and support the continued vitality of Price Waterhouse in ADEA cases. Part II describes the changing demographics in the United States and how a growing pool of older workers necessarily increases the importance of the ADEA. This section also focuses on the number of ADEA charges filed with the Equal Employment Opportunity Commission ("EEOC"). Part III analyzes the origin of the specific provisions of the ADEA and discusses the differences between the ADEA and Title VII resulting from the ADEA's hybrid construction and origins in the FLSA. Part IV reviews the evidentiary burdens of proof in ADEA cases and examines the mixed-motive analysis in particular. This article concludes with the authors' contention that Price Waterhouse, as applied to the ADEA, survives the 1991 amendments to Title VII because of Congress's silence as to the role of mixed-motive analysis under the ADEA, the differing structures of the remedies provisions under the ADEA and FLSA in contrast to Title VII's construction, and the different remedial goals of the ADEA.
Dennard, H.Lane Jr. and Kelly, Kendall L.
"Price Waterhouse: Alive and Well Under the Age Discrimination in Employment Act,"
Mercer Law Review: Vol. 51:
2, Article 10.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol51/iss2/10