On July 26, 2017, the 7th Circuit affirmed an order of summary judgment in favor of the defendant in an age discrimination lawsuit filed under the Age Discrimination in Employment Act (“ADEA”). Carson, et al. v. Lake County Indiana, No. 16-3665 (7th Cir. 7/26/2017). A group of rehired retirees who were fired filed the lawsuit alleging that the County had discriminated against them on the basis of their age in violation of the ADEA. The 7th Circuit concluded that there was no evidence that the County engaged in unlawful age discrimination. The key criterion that distinguished the terminated employees from all other County employees was not their age but rather their impermissible participation in a group health insurance plan supplement while they worked part-time, which necessitated the termination of their employment.

Congress enacted the ADEA to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and employees find ways of meeting problems arising from the impact of age on employment. The ADEA protects employees who are age 40 or older and prohibits employers from refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his or her compensation, terms, conditions or privileges of employment, because of his or her age. The ADEA prohibits disparate treatment, where an older employee is treated less favorably than a substantially younger employee on the basis of his or her age, and age motivated the employer’s adverse employment decision. Disparate impact claims are also cognizable under the ADEA. Disparate impact claims do not require discriminatory intent; instead, disparate impact claims involve facially neutral employment policies that disproportionately impact a protected group and cannot be justified by business necessity.

To prevail on a disparate treatment claim under the ADEA, a plaintiff must prove that age was the “but-for” or determining cause of the subject adverse employment action. In this respect, the ADEA differs from Title VII of the Civil Rights Act of 1964, which protects against mixed-motive employment discrimination. An ADEA plaintiff may prove her case with direct or circumstantial evidence that her employer took adverse employment action against her because of her age. An age discrimination plaintiff may also proceed under the burden-shifting evidentiary framework with evidence that: (1) she is a member of a protected class; (2) she was meeting the employer’s legitimate job expectations; (3) she suffered an adverse job action; and (4) similarly situated substantially younger employees were treated more favorably by the employer. If the plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action, and then the burden shifts back to the plaintiff to prove that the employer’s proffered reason is pretext for unlawful age discrimination.

The plaintiffs in this case argued that the termination decision was discriminatory because all part-time employees who were terminated were age 65 or older, and since age was one of the criteria listed in the termination letter, age was the but-for cause of the employment terminations. However, while age over 65 was a characteristic common to all of the terminated employees, it was not the impetus for the termination decision. The County did not terminate the employees because of their ages. It terminated them because they were enrolled in a retiree-only insurance plan in which current employees could not participate. The plaintiffs were terminated not because of their ages but because they were impermissibly enrolled in a retiree-only Medicare supplement while also working part-time. Other employees of a similar age who were not enrolled in the insurance supplemental plan retained their jobs.