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8 PJI 0 | Third Circuit (US)
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In this case the Plaintiff _______ has made a claim under the Federal Civil Rights statute that prohibits age discrimination against [an employee] [an applicant for employment], if that person is 40 years of age or older. This statute is known as the Age Discrimination in Employment Act or “ADEA.”

Specifically, [plaintiff] claims that [he/she] was [denied employment] [describe the employment action at issue] by the defendant _______ because of [plaintiff's] age.

[Defendant] denies that [plaintiff] was discriminated against because of [his/her] age. Further, [defendant] asserts that [describe any affirmative defenses].

I will now instruct you more fully on the issues you must address in this case.

COMMENT Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

Neither Title VII nor Section 1981 prohibits employers from discriminating on grounds of age. In the Age Discrimination in Employment Act of 1967, however, Congress provided protection for employees age 40 or older who are the victims of discrimination because of age.1 The central provision of the ADEA is 29 U.S.C. § 623, which provides in part as follows:

§ 623. Prohibition of age discrimination

(a) Employer practices. It shall be unlawful for an employer--

(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;

(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

(3) to reduce the wage rate of any employee in order to comply with this Act.

In Hill v. Borough of Kutztown, 455 F.3d 225, 247 (3d Cir. 2006), the Third Circuit set forth the basic elements of an ADEA claim as follows:

To state a claim for age discrimination under the ADEA, a plaintiff must allege that

(1) he is over forty [sic],

(2) he is qualified for the position in question,

(3) he suffered from an adverse employment decision, and

(4) his replacement was sufficiently younger to permit a reasonable inference of age discrimination.

The Hill court found that these standards were met where the 42-year-old plaintiff alleged that he was constructively discharged from his job, for which he was qualified, and replaced by a person who was 27. The court noted that “[c]onstructive discharge is an adverse employment decision that may form the basis of an ADEA claim.” Id. at 247 n.32.

Relationship Between the Coverage of the ADEA and Title VII

The ADEA is patterned after Title VII (though the ADEA incorporates a number of the enforcement and remedial provisions of the Fair Labor Standards Act).2 In some instances the legal standards for determining discrimination under the ADEA are the same as those applicable to Title VII. For example, in Thurston v. TWA, 469 U.S. 111, 121 (1985), the Court applied Title VII precedent to conclude in an ADEA case that an employer may not apportion a benefit in a discriminatory way even if it could have withheld the benefit in question altogether; the Thurston Court stated that this principle “applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII.’ Lorillard v. Pons, supra, [434 U.S. 575] at 584 [1978].” The Thurston Court also noted that “[s]everal Courts of Appeals have recognized the similarity between the two statutes. In Hodgson v. First Federal Savings & Loan Assn., 455 F.2d 818, 820 (1972), for example, the United States Court of Appeals for the Fifth Circuit stated that with ‘a few minor exceptions the prohibitions of [the ADEA] are in terms identical to those of Title VII of the Civil Rights Act of 1964.’”

Prior to June 2009 a number of courts had applied Title VII’s distinction between pretext and mixed-motive cases to the ADEA context. For instance, in Massarsky v. General Motors Corp., 706 F.2d 111, 116-17 (3d Cir. 1983), the Third Circuit noted that “because in many respects the provisions of the ADEA parallel those of Title VII, many courts have adapted to issues of age discrimination the principles of law applicable to cases arising under Title VII of the Civil Rights Act.” The Court in Massarsky held that the delineation between “mixed motive” and “pretext cases” — also known as a delineation between “direct” and “indirect” evidence of discrimination — that had been developed under Title VII, was also applicable to ADEA claims. See also Miller v. Cigna Corp., 47 F.3d 586 (3d Cir. 1995) (en banc) (confirming that the “mixed motive”/ “pretext” dichotomy found in Title VII disparate treatment cases is also applicable in ADEA disparate treatment cases); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 725 n.5 (3d Cir. 1995) (“We generally rely on both ADEA cases and cases arising under Title VII... because Title VII and the ADEA have been given parallel constructions due to their similarities in purpose and structure.”). But in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), the Supreme Court rejected the use of the Title VII mixed-motive framework for ADEA cases. Thus, unlike Chapter 5 – which provides separate instructions for “pretext” cases and “mixed-motive” cases – Chapter 8 provides only one instruction for disparate treatment, because in all ADEA cases the plaintiff always retains the burden to prove that age discrimination was the but-for cause of the adverse employment action. See Comment 8.1.1.

There are a number of other important differences in the legal standards of ADEA and Title VII. One example is that punitive damages are not available under the ADEA, as the statute provides a substitute of “liquidated” (double) damages for “willful” violations. This difference and all others will be noted in the commentary to the individual ADEA instructions.

Admissibility of Evidence of Other Acts of Age Discrimination

In Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140 (2007), the Court provided guidance on how a trial court should treat evidence of “other acts” of age discrimination. The plaintiff argued that her employer had a company-wide policy discriminating against age, and proffered a number of instances in which other age-protected employees had suffered adverse job determinations. The trial court excluded this evidence on the ground that none of the instances involved the plaintiff’s immediate supervisors. The court of appeals took this as a ruling that “me-too” evidence was never relevant, i.e., as a per se rule of exclusion.

The Supreme Court agreed with the court of appeals that a per se rule of admissibility or inadmissibility of other acts of discrimination is not permissible, given that Fed. R. Evid. 403 requires the trial court to balance the probative value of evidence against the dangers of prejudice, confusion and delay. But the Court found it “not entirely clear” that the trial court in this case had in fact excluded the evidence under a per se rule. It remanded the case to allow the trial court “to conduct the relevant inquiry under the appropriate standard.” The Court noted that “[t]he question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact-based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case” and that “[a]pplying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.”

Ministerial Exception

With respect to claims for wrongful termination, the First Amendment’s religion clauses give rise to an affirmative defense that “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 702, 709 n.4 (2012). Though Hosanna-Tabor involved a retaliation claim under the Americans with Disabilities Act, the Court’s broad description of the issue suggests that its recognition of a “ministerial exception” may apply equally to wrongful-termination claims brought under other federal anti-discrimination statutes. See id. at 710 (“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her…. [T]he ministerial exception bars such a suit.”). Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), applied this defense to an ADEA discrimination claim. For further discussion of the ministerial exception, see Comment 5.0.

Scope of Chapter

These model instructions address the elements of ADEA claims and defenses; pertinent definitions; and questions of damages. The commentary is designed to explain the drafting of the model instructions and generally does not focus on other procedural matters.3

(Last Updated July 2019)


1 In Hildebrand v. Allegheny County, 757 F.3d 99 (3d Cir. 2014), the Court of Appeals held that the ADEA displaces Section 1983 Equal Protection claims for age discrimination. See id. at 110 (“Congress intended the ADEA to be the exclusive remedy for claims of age discrimination in employment.”).
2 See, e.g., C.I.R. v. Schleier, 515 U.S. 323, 325-26 (1995) (observing that “[t]he ADEA incorporates many of the enforcement and remedial mechanisms of the” FLSA, but also noting distinctions between the two statutory schemes), superseded by statute on other grounds as noted in Eshelman v. Agere Sys., Inc., 554 F.3d 426, 441 (3d Cir. 2009); Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215, 224 n.8 (3d Cir. 2016) (observing that “the ADEA incorporates enforcement provisions of the FLSA, including the collective action provisions of 29 U.S.C. § 216(b)”).
3 Administrative-exhaustion requirements provide one example. 29 U.S.C. § 626(d)(1) sets an administrative-exhaustion requirement for ADEA claims generally. 29 U.S.C. § 633a sets a different administrative-exhaustion framework for ADEA claims by federal employees. The Committee has not attempted to determine whether assessing compliance with these exhaustion requirements ever presents a task for the jury. Compare Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997) (evincing the view that a question of compliance with the exhaustion requirement set by 29 C.F.R. § 1614.105 for Title VII suits by federal employees could properly be submitted to the jury), with Small v. Camden Cty., 728 F.3d 265, 269, 271 (3d Cir. 2013) (holding that compliance with the exhaustion requirement set by the Prison Litigation Reform Act presents a question that can be resolved by the judge). In the event that a dispute over exhaustion presents a jury question, the court may wish to submit relevant interrogatories to the jury. The Committee welcomes feedback from users of the model instructions concerning the need for, and appropriate nature of, model instructions on the topic of exhaustion.

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