A recent case in the Third Circuit adds complexity to employer actions with respect to potential age discrimination. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people who are age 40 or older. Age discrimination is treating someone (a job applicant or an employee) less favorably because of his or her age. The law does not prohibit treating an older worker more preferential than a younger worker, even if both are age 40 or older.
In Karo v. Pittsburgh Glass Works, LLC, the Third Circuit found that the ADEA allows claims by older subgroups of workers against younger subgroups of workers, even if people in the younger group are over 40. The employer in the case was an automotive glass manufacture that was downsizing its workforce. The company held several reductions in force (RIFs) and allowed supervisors to set the terms of the layoffs. The plaintiffs alleged that the RIFs resulted in the termination of a disproportionate number of employees over the age of 50. The Court found that the RIF violated the ADEA, even though the worker bringing the case was replaced by a 40 year old. This case found that in the Third Circuit, an employee in his 50s can sue his employer when a policy disfavors the employee, even if the employer’s policy favors workers in their 40s.
Courts across the country are split on this issue. Some jurisdictions allow claims by older workers against younger workers in a protected class and some do not. This issue is likely to be raised to the Supreme Court for determination of the split in the courts. Until then, employers who are considering a RIF should make sure to analyze statistically if the policy will impact workers over an age range at the expense of workers in another age range, even if both groups are age 40 or older.
