29 U.S.C. §§ 621–634
Elements
Employer coverage and exclusions
It shall be unlawful for an employer-
Employer status is statutory, not established merely by quoting §623. Individual liability, sovereign immunity and employment status need jurisdiction-specific analysis; coverage does not itself waive state sovereign immunity.
Age forty or older
because of such individual's age;
The age floor comes from §631, not §623. A comparator or replacement may itself be over forty; substantially younger is the relevant inference, not membership outside the protected class.
Hiring discharge or employment terms
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
Judicial but-for standard for age-based treatment
because of such individual's age;
Gross, 557 U.S. 167 (2009), governs §623(a)(1). A motivating-factor showing alone does not shift persuasion to the employer. Direct and circumstantial proof are available; McDonnell Douglas is a proof framework, not the statute or an inflexible universal pleading checklist.
Judicial impact requirement to identify a particular practice
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
Isolate the practice responsible for the disparity; workforce-wide age imbalance alone is insufficient. O’Brien held a benefits-liquidation rule applied to hundreds of employees actionable even though adopted once.
Judicial impact requirement of significant causal disparity
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
Statistical comparison must fit the affected labor pool and challenged practice. O’Brien recognizes older-subgroup comparisons within the over-forty class; do not present that circuit treatment as a universal rule.
Judicial outside-applicant coverage limit where circuit precedent controls
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age; or
Kleber en banc (7th Cir. 2019) excludes outside applicants from §623(a)(2), consistent with the Eleventh Circuit; §623(a)(1) treatment claims for applicants remain available. This jurisdiction-sensitive boundary is part of neutral-practice coverage, not a bar to all ADEA hiring claims.
Reasonable factors other than age
where the differentiation is based on reasonable factors other than age
The employer bears production and persuasion on this affirmative defense (Meacham, 554 U.S. 84). Reasonableness differs from Title VII business necessity and does not demand the least discriminatory alternative. RFOA is not permission for intentional age discrimination.
Opposition or participation
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.
Judicial material-adversity standard for retaliation
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.
Davis-Garett applies Burlington Northern: harm need not change employment terms, but trivial slights do not suffice. Evaluate context and employer knowledge of protected conduct.
Retaliatory causal connection
It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.
Require causal connection between protected conduct known to defendant and material adversity; ultimate retaliation liability requires the applicable but-for standard, not merely chronological sequence. Davis-Garett addresses the adversity standard, not an independent holding relaxing ultimate causation.
Covered employment agency
It shall be unlawful for an employment agency
Agency referral discrimination
(b) Employment agency practices It shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individual's age, or to classify or refer for employment any individual on the basis of such individual's age.
Covered labor organization
It shall be unlawful for a labor organization-
Membership classification referral or causing discrimination
(1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his age;
Employer agency or union advertiser
It shall be unlawful for an employer, labor organization, or employment agency to print or publish
Apply the relevant §630 covered-entity definition; employer-only numerical coverage is not imposed on every kind of entity.
Age-based notice or advertisement
It shall be unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization, or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification, or discrimination, based on age.
Wage reduction to comply
(3) to reduce the wage rate of any employee in order to comply with this chapter.
Narrow bona fide occupational qualification
where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business
Section 623(f)(1) statutory defense; employer must justify age qualification, not rely on stereotypes or ordinary preference. Detailed safety/BFOQ evidentiary variants are outside this core catalogue.
Conditional bona fide seniority system or benefit plan
(2) to take any action otherwise prohibited under subsection (a), (b), (c), or (e) of this section-
Statutory alternatives: (A) a bona fide seniority system without an evasion purpose; (B)(i) the prescribed equal-benefit/cost condition or (B)(ii) a voluntary early-retirement incentive consistent with the Act. The defendant bears proof. Both seniority and benefits forbid age-based involuntary retirement as stated; the additional failure-to-hire prohibition applies to (B), not automatically to every seniority system. Pension accrual compliance belongs in pension-safeguards, not an unconditional f(2) exemption.
Good cause for employer discharge or discipline
(3) to discharge or otherwise discipline an individual for good cause.
Catalogue scope: employer discharge or disciplinary action under the disparate-treatment route only, subject to good-cause-scope. Not a general business-justification defense to hiring, non-disciplinary employment terms, agency referral/classification, union membership/referral, advertising, impact, retaliation or pension claims. A proffered reason can be rebutted as pretext; the claimant retains the ultimate Gross persuasion burden.
Foreign workplace conflict with local law
where such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located;
§623(f)(1); also inspect §623(h) control and foreign-employer rules and §630(f) citizenship coverage. Mere foreign business convenience is not statutory conflict.
Charge filing waiver and remedies
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age;
Enforcement is not another merits element. Wrolstad applied a 300-day deferral-state deadline to unequivocal notice of a threat to sue. Federal §633a procedures and Babb causation are separate; see NOTES scope map.
Route-conditioned statutory f(1) and f(2) alternatives
(1) to take any action otherwise prohibited under subsections (a), (b), (c), or (e) of this section
Conditional gate for (a), (b), (c), (e), including agency, union and advertising routes. This is a disjunction of applicable defenses, not an assumption that every actor has every defense. Benefit coordination under (l)-(n) requires separate specialist analysis as disclosed in catalogue-scope.
Establish or maintain an employee pension benefit plan
(1) Except as otherwise provided in this subsection, it shall be unlawful for an employer, an employment agency, a labor organization, or any combination thereof to establish or maintain an employee pension benefit plan which requires or permits-
Age-based accrual or allocation cessation or reduction
(A) in the case of a defined benefit plan, the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual, because of age, or
Subsection i pension qualifications and compliance
(4) Compliance with the requirements of this subsection with respect to an employee pension benefit plan shall constitute compliance with the requirements of this section relating to benefit accrual under such plan.
These are conditional statutory qualifications, not an actuarial compliance finding. Teufel's pinned sentence supports (i)(4) compliance, not a freestanding f(2) defense. An (i)(1) assessment must examine all relevant (i)(2)-(10) conditions; this core formula does not independently model every hybrid-conversion violation.
Conditional state firefighter and law-enforcement hiring or retirement
(j) Employment as firefighter or law enforcement officer It shall not be unlawful for an employer which is a State, a political subdivision of a State, an agency or instrumentality of a State or a political subdivision of a State, or an interstate agency to fail or refuse to hire or to discharge any individual because of such individual's age if such action is taken-
Limited to the enumerated governmental employers, occupations, and hiring/discharge acts. It is not a general public-sector or public-safety BFOQ and does not excuse unrelated employment terms or retaliation.
Age sixty-five executive or high-policymaker compulsory retirement
to discharge any individual
Cross-section statutory exception only to qualifying compulsory retirement; no exemption from all discrimination protections for anyone called an executive. The §623 text anchor is the discharge hook, not a fabricated §631 quotation.
Displayed scope and specialized exclusions
§623. Prohibition of age discrimination
Models core (a)-(f) practices, (i)(1) pension accrual with conditional (i) safeguards, (j) public-safety and §631(c) executive retirement. Full (l)-(n) benefit-coordination and tenured-faculty incentive rules, detailed (i)(10) actuarial/conversion claims, and federal-sector §633a litigation remain outside these core formulas. Foreign-employer/control coverage under (h), §630 citizenship/employee definitions and enforcement prerequisites must also be checked; none is displaced by these merits formulas.
Employer agency union or combination maintaining a pension plan
an employer, an employment agency, a labor organization, or any combination thereof
Section 623(i)(1) identifies these pension-plan actors independently of advertising. Apply the relevant §630 entity definitions; no notice, advertisement or publication is required.
Cases
- Jardin v. CoxCom, LLC 320 F. Supp. 3d 373 (2018)
civil; ADEA age discrimination; employer motion for summary judgment granted by DRI (result: claimant-lost)
- Shoap v. City of Crossville 321 F. Supp. 3d 839 (2018)
civil; ADEA age discrimination and retaliation; employer motion for summary judgment granted on the federal (Title VII and ADEA) claims by MD Tenn; plaintiff resigned and claimed constructive discharge (result: claimant-lost)
- Kitchen v. BASF 343 F. Supp. 3d 681 (2018)
civil; ADEA age discrimination; magistrate judge recommends granting employer's motion for summary judgment (ADA, ADEA, § 1981) and denying plaintiff's cross-motion (result: claimant-lost)
- McDaniel v. Progress Rail Locomotive 343 F. Supp. 3d 753 (2018)
civil; ADEA age discrimination and retaliation; employer motion for summary judgment granted by ND Ill (result: claimant-lost)
- Williams v. Temple Univ. Hosp., Inc. 345 F. Supp. 3d 590 (2018)
civil; ADEA age discrimination; employer motion for summary judgment denied as to the ADEA/PHRA claims by ED Pa (withdrawn ERISA count dismissed); claim-preclusion argument from unemployment-compensation rulings rejected (result: claimant-won)
- Rogers v. Medline Indus., Inc. 361 F. Supp. 3d 616 (2019)
civil; ADEA disparate treatment and disparate impact; employer motion for summary judgment granted in part and denied in part by SD Miss (result: mixed)
- Boney v. Trs. of Cape Fear Cmty. Coll. 366 F. Supp. 3d 756 (2019)
civil; ADEA constructive discharge; motion to dismiss granted by EDNC (result: claimant-lost)
- Richardson v. Astec, Inc. 366 F. Supp. 3d 983 (2019)
civil; ADEA age discrimination; employer motion for summary judgment denied by ED Tenn (result: claimant-won)
- Spratt v. Bellwood Public Library 380 F. Supp. 3d 783 (2019)
Rule 12(b)(6) motion to dismiss retaliation claim (result: claimant-won)
- Rivera-Rivera v. Medina & Medina, Inc. 898 F.3d 77 (2018)
civil; ADEA hostile work environment and retaliation; summary judgment for employer reversed as to both ADEA claims by CA1 (Title VII wage and gender claims affirmed) (result: claimant-won)
- Eggers v. Wells Fargo Bank, N.A. 899 F.3d 629 (2018)
civil; ADEA disparate impact; summary judgment for employer affirmed by CA8 (result: claimant-lost)
- O'Brien v. Caterpillar Inc. 900 F.3d 923 (2018)
appellate review of summary judgment in benefits liquidation case (result: claimant-lost)
- Dayton v. Oakton Cmty. Coll. 907 F.3d 460 (2018)
civil; ADEA disparate impact (class of annuitant adjunct faculty); summary judgment for community college affirmed by CA7 (result: claimant-lost)
- Wrolstad v. CUNA Mutual Insurance Society 911 F.3d 450 (2018)
appellate review of age-discrimination and retaliation claims (result: claimant-lost)
- Kleber v. CareFusion Corp. 914 F.3d 480 (2019)
en banc appeal from dismissal of an ADEA disparate-impact applicant claim (result: claimant-lost)
- Bryan v. Gov't of the V.I. 916 F.3d 242 (2019)
civil; ADEA disparate treatment and disparate impact (class action); judgment for government employer on a stipulated record in a bifurcated liability trial affirmed by CA3 (result: claimant-lost)
- Davis-Garett v. Urban Outfitters, Inc. 921 F.3d 30 (2019)
appellate review of retaliation dismissal (result: remanded)
- Westmoreland v. TWC Administration, LLC 924 F.3d 718 (2019)
appellate review after jury trial (result: claimant-won)
- Heisler v. Nationwide Mutual Insurance Co. 931 F.3d 786 (2019)
appeal from summary judgment for employer (result: claimant-lost)
- McMichael v. Transocean Offshore Deepwater Drilling, Inc. 934 F.3d 447 (2019)
appeal from summary judgment for employer (result: claimant-lost)