Age Discrimination Class Actions

Background

In 1967, Congress passed the Age Discrimination in Employment Act (ADEA) to prevent employers from discriminating against workers who are 40 years of age and older. The ADEA applies to employers with 20 or more employees, state and local governments, the federal government, and labor unions. Under the ADEA, employers may be prosecuted for discrimination against older employees and applicants in deciding on hiring, firing, promotions, benefits, retirement, and working conditions. An employer legally may consider age in making an employment decision only if the employer can show that age is a bona fide occupational qualification.

As with other discrimination laws, employees or applicants who are injured by a violation of the ADEA may file a charge with the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing the law. If the EEOC fails to file its own enforcement action within 60 days, the employee or applicant may file a civil lawsuit against the employer. If the EEOC decides to pursue a remedy on its own, the employee or applicant may not pursue his or her own action.

Class Action Procedures

Groups of employees or applicants who were discriminated against by an employer because of their age may file a class ADEA action against the offending employer. Class action procedures for ADEA actions, however, are modeled on class action remedies available to persons injured by violations of the Fair Labor Standards Act rather than class action remedies under other anti-discrimination laws, such as Title VII.

Under the ADEA, persons who are "similarly situated" may participate in a class action against an employer. For example, all applicants over the age of 40 who were denied employment with a retailer may choose to join in an ADEA class action against that retailer.

Standard class actions require that some type of notice must be given to all potential class members. The ADEA, however, does not have such a requirement. Potential class members who fail to hear about a pending ADEA class action may be excluded from participation.

"Opt-Out"

In standard class actions in which notice is given, potential class members who do not wish to be bound by any judgment are required to "opt out" or specifically state that they do not wish to participate in the class action. With ADEA class actions, however, parties who are similarly situated must "opt in" or specifically give their written consent to participate in the action.

EEOC Charge Requirement

Although the ADEA requires injured employees or applicants to file a charge with the EEOC 60 days before filing a civil lawsuit against the employer, all participants in a class action need not meet this requirement. The courts have ruled that only a "single filing" of an EEOC charge is required and that all other class members may rely upon a single class member's EEOC charge to pursue a class action remedy.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.