The plaintiff has brought a claim of employment discrimination against the defendant.  The plaintiff asserts the defendant [discharged] [specify other adverse action] the plaintiff because of [his] [her] age.  The defendant denies that the plaintiff was [discharged] [specify other adverse action] because of [his] [her] age [[and further asserts the decision to [discharge] [specify other adverse action] the plaintiff was based on [a] lawful reason[s]]. 

            In order to prevail on this claim, the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 

1.         the defendant [discharged] [specify other adverse action] the plaintiff; 

2.         the plaintiff was 40 years of age or older at the time [he] [she] was [discharged] [specify other adverse action]; and 

3.         the defendant [discharged] [specify other adverse action] the plaintiff because of [his] [her] age, that is, the defendant would not have [discharged] [specify other adverse action] the plaintiff but for [his] [her] age. 

            If you find that the plaintiff has proved all three of these elements, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 

Comment 

            Although a Title VII plaintiff need only prove that a protected status was “a motivating factor” for an adverse employment action, Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003), an ADEA plaintiff may not proceed on a mixed-motives theory.  Gross v. FBL Financial Services, Inc., 557 U.S. 167(2009).  

            Despite the fact that both Title VII and the ADEA prohibit discrimination “because of” a specified protected status,other “textual differences between Title VII and the ADEA . . . prevent . . . [application of] Desert Palace to federal age discrimination claims.”  Gross, 557 U.S. at 175 n.2; see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2527 (2013).  Specifically, 1991 amendments to Title VII, but not to the ADEA, provide that discrimination is “established” when a plaintiff shows the protected status was “a motivating factor” for the adverse employment actions.  Without this additional language in the ADEA, the Court held in Gross that “a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”  Id. at 180. Thus, earlier Ninth Circuit cases applying the same standards to disparate treatment cases under the two statutes must now be read in light of Gross. 

            In describing the “but for” standard applicable in ADEA cases, the Court in Gross noted: 

The words “because of” mean “by reason of: on account of.”  . . .  Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act.  See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993) (explaining that the claim “cannot succeed unless the employee's protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer's adverse decision. 

Gross, 557 U.S. at 176 (emphasis in original). 

            The Supreme Court recently clarified that federal employees are not required to meet the “but-for” causation standard to establish age discrimination.  Babb v. Wilkie, 589 U.S. 399, 411-13 (2020) (analyzing 29 U.S. § 633a(a)).  Rather, a federal employee is entitled to relief upon a showing of being “subjected to unequal consideration.”  Id.  However, that showing will support only “injunctive or other forward-looking relief.”  Id. at 414.  To “obtain reinstatement, backpacy, compensatory damages, or other forms of relief related to the end result of an employment decision,” a federal employee must satisfy the “but-for” causation standard.  Id. at 413. 

Revised June 2024

Comment

            At least one Ninth Circuit case suggests that a viable hostile work environment claim can be stated under the ADEA. Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1109 (9th Cir.1991), superseded on other grounds as recognized by Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1041 (9th CIr. 2015) ("A plaintiff may show violations of [the ADEA] by . . . proving the existence of a hostile work environment."). This is consistent with the general practice that, absent reasons to the contrary, intentional discrimination under the ADEA should be treated in the same fashion as Title VII. See generally Coleman v. Quaker Oats Co., 232 F.3d 1271, 1295 (9th Cir.2000) ("The analysis [of disparate treatment claims] under Title VII is the same as that under ADEA."); Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1180 n.11 (9th Cir.1998) ("This Court applies the same standards to disparate treatment claims pursuant to Title VII [and] the Age Discrimination in Employment Act . . . .").

            As with Title VII, the ADEA defines "employer" to include the employer’s agents. 29 U.S.C. § 630(b). Thus, the liability framework for Title VII harassment addressed in the Supreme Court’s decisions in Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), should also apply to cases brought under the ADEA. 

            As applicable, the parallel Title VII instructions concerning hostile work environment claims (Instructions 10.4, 10.5, 10.6, and 10.7) should be given, in a form modified to take into account that age is the protected characteristic by adding the element that the plaintiff was 40 years of age or older at the time of the harassment. See 29 U.S.C. § 631(a).

Comment

            The ADEA "makes it unlawful for an employer to retaliate against an employee for opposing the employer’s discriminatory practices or participating in any investigation or proceeding under the ADEA[.]" O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir.1996). See 29 U.S.C. § 623(d). The Ninth Circuit applies the same standard in both ADEA and Title VII retaliation cases. See Hashimoto v. Dalton, 118 F.3d 671, 675 n.1 (9th Cir.1997) ("[T]he ADEA anti-retaliation provision is ‘parallel to the anti-retaliation provision contained in Title VII,’ and . . . ‘cases interpreting the latter provision are frequently relied upon in interpreting the former.’"); O’Day, 79 F.3d at 763 ("Section 623(d) is the ADEA equivalent of the anti-retaliation provision of Title VII, 42 U.S.C. § 2000e-3(a), and like its counterpart it makes it unlawful for an employer to retaliate against an employee for opposing the employer's discriminatory practices or participating in any investigation or proceeding under the ADEA."); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1441 (9th Cir.1990) ("We rely on cases involving retaliation claims brought under Title VII or Section 1981 as well as the ADEA. Few published opinions involve ADEA retaliatory claims. Those circuits that have considered ADEA retaliation claims have generally adopted the analysis used in Title VII cases without comment.").

           As applicable, Instruction 10.8 (Civil Rights—Title VII—Retaliation —Elements and Burden of Proof.) should be given in a form modified to take into account that the activity protected under federal law is opposition to practices made unlawful by the ADEA. See 29 U.S.C. § 623(d).

            The plaintiff seeks damages based on age discrimination in violation of federal law. In order to prevail on this claim, the plaintiff has the burden of proving each of the following elements by a preponderance of the evidence: 

1.       the plaintiff was 40 years of age or older at the time the plaintiff was [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]]; 

2.       the defendant used a specific [test] [requirement] [practice] [selection criterion] that had a significantly adverse or disproportionate impact on employees 40 years of age or older; and 

3.       the defendant’s [test] [requirement] [practice] [selection criterion] resulted in the plaintiff being [[discharged] [not hired] [not promoted] [demoted] [state other adverse action]]. 

            If you find that the plaintiff has proved all three of these elements, your verdict should be for the plaintiff.  If, on the other hand, the plaintiff has failed to prove any of these elements, your verdict should be for the defendant. 

Comment 

            “A disparate impact claim challenges employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another …”  Pottenger v. Potlatch Corp., 329 F.3d 740, 749 (9th Cir. 2003).  In Smith v. City of Jackson, 544 U.S. 228, 232 (2005), the Supreme Court affirmed the availability of a disparate impact claim under the ADEA.  For a detailed discussion of a disparate impact claim arising under the Fair Housing Act, see Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015) (relying on cases interpreting Title VII and the ADEA).  

            The first element states the age threshold necessary to fall within the ADEA.  See 29 U.S.C. § 631(a). 

            The second element reflects Smith’s holding that “it is not enough to simply allege that there is a disparate impact on workers or point to a generalized policy that leads to such an impact.  Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”  Smith, 544 U.S. at 240-41 (internal quotation omitted) (emphasis in original) (holding that heightened disparate impact standard of Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989), applies in ADEA cases because Civil Rights Act of 1991, which abrogated Wards Cove in Title VII cases, did not amend ADEA).  Thus, the plaintiff must establish that the employer uses a “specific test, requirement, or practice . . . that has an adverse impact on older workers.”  Smith, 544 U.S. at 241. 

            The third element states the requirement that the plaintiff “must show that he was subject to the particular employment practice with the alleged disparate impact.”  Pottenger, 329 F.3d at 750. 

            When an affirmative defense is asserted, this instruction should be accompanied by the appropriate affirmative defense instruction.

Revised June 2024

Comment 

            The ADEA defines several common terms in the same manner as Title VII. As applicable, the following Title VII instructions should be given: Instructions 10.10 ("Adverse Employment Action" in Retaliation Cases), 10.11 ("Adverse Employment Action" in Disparate Treatment Cases), 10.12 ("Tangible Employment Action" Defined), and 10.13 ("Constructive Discharge" Defined).

Comment 

            The following instructions address affirmative defenses and limitations on remedies. The appropriate affirmative defenses will depend on the plaintiff’s theory of liability. 

            The bona fide occupational qualification (BFOQ) defense allows, under certain circumstances, an employer to facially discriminate on the basis of age when the discrimination is reasonably necessary to its business. 29 U.S.C. § 623(f)(1). See Instruction 11.7 (Age Discrimination—Defenses—Bona Fide Occupational Qualification). 

            The bona fide seniority system defense provides that an employer is not liable under the ADEA when its decisions are based on a legitimate seniority system that does not require involuntary retirement. 29 U.S.C. § 623(f)(2)(A). See Instruction 11.8 (Age Discrimination—Defenses—Bona Fide Seniority System). 

            After-acquired evidence is a judicially crafted equitable doctrine that allows an employer to avoid reinstatement and front pay and to limit an award of back pay to the period of time between unlawful termination and the time at which the employer discovered that plaintiff’s "wrongdoing was of such severity that the [plaintiff] in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge." McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63 (1995); see also O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 759 (9th Cir.1996). See Instruction 11.9 (Age Discrimination—Defenses—After-Acquired Evidence). 

            The bona fide employee benefit plan defense allows an employer to approximately equalize the costs of providing nonwage benefits to employees of differing ages. 29 U.S.C. §　623(f)(2)(B). See Instruction 11.10 (Age Discrimination—Defenses—Bona Fide Employee Benefit Plan). 

            The reasonable factor other than age (RFOA) defense excuses liability under the ADEA when a decision is based on any reasonable and legitimate business consideration other than the age of the employee. 29 U.S.C. § 623(f)(1). See Instruction 11.11 (Age Discrimination—Defenses—Reasonable Factor Other Than Age).

Comment 

            Under 29 U.S.C. § 623(f)(1) an employer may take action that would otherwise be prohibited where "age is a bona fide occupational qualification [(‘BFOQ’)] reasonably necessary to the normal operation of the particular business." The BFOQ defense is also available in Title VII cases, and the same standard applies. See W. Air Lines, Inc. v. Criswell, 472 U.S. 400, 414-17 (1985) (interpreting ADEA’s BFOQ exception in light of Title VII’s BFOQ exception); see also Smith v. City of Jackson, 544 U.S. 228, 234 (2005) (noting that certain "language in the ADEA . . . was derived in haec verba from Title VII" (internal quotation omitted)). Thus, when a BFOQ defense is at issue, the court should give the parallel Title VII instruction (Instruction 10.14) with appropriate modification. See also Comment to Instruction 10.14 (Civil Rights—Title VII—Defense—Bona Fide Occupational Qualification).

            The defendant contends that its treatment of the plaintiff was based on a bona fide seniority system. The defendant has the burden of proving each of the following elements by a preponderance of the evidence: 

            1.        the seniority system had legitimate goals and was not designed to discriminate on the basis of age; 

            If you find that the plaintiff has proved [his] [her] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instruction[s] on the plaintiff’s theory of liability], your verdict should be for the plaintiff, unless you find that the defendant has proved this defense, in which event your verdict should be for the defendant.

Comment 

            The bracketed third element should be given only when involuntary retirement is at issue. 

            The ADEA provides an affirmative defense for age discrimination undertaken as part of a bona fide seniority system. 29 U.S.C. § 623(f)(2)(A). See generally Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) ("[I]t is incorrect to say that a decision based on years of service is necessarily age-based[.]"). 

            Because Title VII provides a similar bona fide seniority system defense, the first two elements are based on the parallel Title VII instruction. See Hiatt v. Union Pac. R.R. Co., 65 F.3d 838, 842 (10th Cir.1995) (analogizing § 623(f)(2)(A) to similar language in Title VII). See also Pullman-Standard v. Swint, 456 U.S. 273, 289 (1982) (discussing Title VII seniority exception). See also Instruction 10.15 (Civil Rights—Title VII—Defense—Bona Fide Seniority System). 

            The ADEA was substantially amended in 1978 to add a provision prohibiting the use of a seniority system to "require or permit . . . involuntary retirement[.]" 29 U.S.C. § 623(f)(2)(A). The committee is unable to find Ninth Circuit authority construing the post-1978 version of this provision, and the pre-1978 cases invariably concern involuntary retirement. See, e.g., United Air Lines, Inc. v. McMann, 434 U.S. 192, 195-203 (1977) (construing text and history of former version of statute); EEOC v. Santa Barbara County, 666 F.2d 373, 375 n.6 & 377 (9th Cir.1982). 

            Because there is no authority construing the provision, and because the literal text of "require or permit . . . involuntary retirement" is less than clear, the language of the third element is adopted from a Ninth Circuit case construing identical involuntary retirement language in 29 U.S.C. § 623(f)(2)(B), the ADEA’s employee benefit plan defense. See Kalvinskas v. Cal. Inst. of Tech., 96 F.3d 1305, 1308 (9th Cir.1996) (holding that an employee benefits plan "require[s] or permit[s] the involuntary retirement of any individual," when "a reasonable person in [the plaintiff’s] position would feel he had no choice but to retire.").

Comment 

            The ADEA applies the after-acquired evidence doctrine in the same manner as Title VII. See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358–59 (1995); O’Day v. McDonnell Douglas Helicopters Co., 79 F.3d 756, 759-60 (9th Cir.1996). Thus, the parallel Title VII instruction, Instruction 10.16 (Civil Rights—Title VII—Defense—After-Acquired Evidence) should be given with appropriate modifications. 

            If an employer takes an adverse employment action such as discharging an employee for a discriminatory reason, later-discovered evidence that the employer could have used to discharge the employee for a legitimate reason does not immunize the employer from liability; however, the employer does not have to offer reinstatement or front pay and only has to provide back pay "from the date of the unlawful discharge to the date the new information was discovered." McKennon, 513 U.S. at 362 (1995) (ADEA case); see also Rivera v. Nibco, Inc., 364 F.3d 1057, 1071 n.16 (9th Cir.2004); O’Day, 79 F.3d at 761-62 (9th Cir.1996). The employer must prove by a preponderance of the evidence that it would have fired the employee because of the after-acquired evidence. Id. at 761. 

            In Title VII cases, the defense of after-acquired evidence is similar to, but not the same as, an employer’s affirmative defense to a charge that a protected characteristic was a "motivating factor" in an adverse employment decision, because both defenses provide limitations on remedies without absolving an employer of liability. In the case of "after-acquired evidence," the information establishing a lawful basis for the employer’s adverse employment decision is not acquired until after the adverse decision and thus only limits remedies as set forth in Instruction 10.16.

            The defendant contends that any age-related disparate treatment afforded to the plaintiff resulted from the plaintiff’s participation in a bona fide employee benefit plan. "Disparate" means "different." The defendant has the burden of proving each of the following elements by a preponderance of the evidence:

            1.      [describe the alleged discriminatory action] occurred as part of the defendant’s policy of providing its workers with nonwage benefits under an employee benefit plan;

            2.       the benefit plan was bona fide, that is, it existed and provided for and paid benefits to employees;

            3.       the defendant was actually following the plan at the time it is alleged to [describe the alleged discriminatory action]; [and]

            4.       [the defendant’s employee benefit plan did not place the plaintiff in a position where a reasonable person in that position would believe that [he] [she] had no choice but to retire; and]

            [4] [5] [describe the alleged discriminatory action] is justified by significant cost considerations. 

            Evaluating whether the disparate treatment is justified requires considering that some benefits cost more to provide to older workers than to younger ones. The law allows employers to provide less in benefits to older workers when (a) the employer spends approximately the same amount for benefits for older and younger workers, and (b) the extent of the difference in benefits is necessary to keep the cost approximately equivalent. Thus, a plan is justified by significant cost considerations when any age-related differential in employee benefits exists only to the extent necessary to achieve approximate equivalency in costs between older and younger workers. 

            If you find that the plaintiff has proved [his] [her] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instruction[s] on the plaintiff's theory of liability], your verdict should be for the plaintiff, unless you find that the defendant has proved all [four] [five] elements of this defense, in which event your verdict should be for the defendant. 

Comment 

            The bracketed fourth element should only be used when involuntary retirement is at issue.

            The ADEA exempts certain employer actions taken pursuant to a "bona fide employee benefit plan" from general liability under the statute. See 29 U.S.C. § 623(f)(2)(B). 

            Prior to 1989, the Ninth Circuit used a four-element test in applying this provision. EEOC v. Orange County, 837 F.2d 420, 421 (9th Cir.1988) ("To qualify for exemption under section [623](f)(2), [a] plan must fulfill four criteria: 1) it must be the sort of ‘plan’ covered by the section, 2) it must be ‘bona fide,’ 3) the [employer]’s action must be in observance of the plan, and 4) the plan must not be a subterfuge to evade the purposes of the Act."). 

            Subsequent to the establishment of the Ninth Circuit test, the Supreme Court substantially redefined the "subterfuge" element and placed the burden on the plaintiff to show that the plan "was intended to serve the purpose of discriminating in some nonfringe-benefit aspect of the employment relation." Pub. Employees Ret. Sys. v. Betts, 492 U.S. 158, 181 (1989). Then, in 1990, Congress amended the statute, effectively abrogating the holding of Betts in two respects. The amendment: (1) removed the word "subterfuge" from the text of the statute and replaced it with the definition that had been used by the EEOC prior to Betts; and (2) clarified that the employer claiming the defense bears "the burden of proving that such actions are lawful"—thus establishing that the provision is, contrary to the characterization in Betts, an affirmative defense. See Older Workers Benefit Protection Act (OWBPA), Pub.L. 101-433, Title I, § 103, Oct. 16, 1990, 104 Stat. 978.  ; see also Meacham v. Knolls Atomic Power Lab’y, 554 U.S. 84, 94-95 (noting enactment of OWBPA and holding that the added phrase “otherwise prohibited” is an affirmative defense). After the 1990 amendment, there is little Ninth Circuit law interpreting the bona fide employee benefit provision. However, Congress was clear that the amendment was meant to return the law to its pre-Betts state. See OWBPA § 101 ("Congress finds that, as a result of the decision of the Supreme Court in . . . Betts, . . . legislative action is necessary to restore the original congressional intent in passing and amending the [ADEA]."). Thus, the general state of the law pre-Betts is persuasive and some version of the four-element test should apply. See Orange County, 837 F.2d at 421; EEOC v. Borden’s Inc., 724 F.2d 1390, 1395 (9th Cir.1984), disapproved by Betts, 492 U.S. at 172. 

            As to the first element, it appears reasonable to retain the relatively broad definition of "employee benefit plan" as discussed in Betts. Betts relied on an EEOC regulation’s definition of these benefits as "fringe"—i.e., other than monetary compensation—and gave the examples (then in the statute) of retirement, pension, and insurance plans. 492 U.S. at 174. See also Am. Assoc. Ret. Pers. v. Farmers Group, Inc., 943 F.2d 996, 1003 (9th Cir.1991) (following Betts; distinguishing "wages" from "benefits"). The OWBPA did not alter the substance of that definition. 

            The second element is straightforward. "‘[B]ona fide’ . . . has been held to mean no more than that the plan exists and pays substantial benefits." Borden’s, 724 F.2d at 1395. 

            The third element is a question of historical fact. 

            The text of the statute also provides that no affirmative defense is available (even if justified by cost) if a plan "require[s] or permit[s] the involuntary retirement of any individual." 29 U.S.C. § 623(f)(2). This section has been construed to mean that discrimination that occurs pursuant to a benefits plan must not lead a reasonable person in the position of the plaintiff to believe that he has "no choice but to retire." Kalvinskas v. Cal. Inst. of Tech., 96 F.3d 1305, 1308 (9th Cir.1996). As the statute requires the employer to prove the legality of its conduct, when relevant, the court should instruct the jury on this additional fourth element. 

            The final element was clearly altered by the OWBPA. Instead of using the word "subterfuge," Congress used the definition of subterfuge applied by the EEOC prior to Betts. Thus, the fifth element now requires that the plan be "justified by significant cost considerations." 29 C.F.R. § 1625.10 (incorporated by reference in 29 U.S.C. § 623(f)(2)(B)(i)). More specifically, an age-based differential in employee benefits is exempted under the ADEA only "to the extent necessary to achieve approximate equivalency in cost for older and younger workers." Id. 

            Cost of benefits cannot excuse a failure to hire. 29 U.S.C. § 623(f)(2)(B).

Revised June 2024

            The defendant contends that its [test] [requirement] [practice] [selection criterion] is based on a reasonable factor other than the plaintiff’s age.  The defendant has the burden of proving the following elements by a preponderance of the evidence: 

1.         the [test] [requirement] [practice] [selection criterion] is based on a factor other than the age of [the plaintiff] [those similarly situated]; 

2.         [insert justification for factor] is a legitimate interest of the defendant’s business; and 

3.         the [test] [requirement] [practice] [selection criterion] is reasonably related to achieving [insert justification for factor]. 

            If you find that the plaintiff has proved [his] [her] claim[s] in accordance with Instruction[s] [insert cross reference to the pertinent instruction[s] on the plaintiff’s theory of liability], your verdict should be for the plaintiff, unless you find that the defendant has proved this defense, in which event your verdict should be for the defendant. 

Comment 

            Distinctions “based on reasonable factors other than age” RFOA) are not unlawful under the ADEA.  29 U.S.C. § 623(f)(1).  Thus, in a disparate impact case, the defendant is entitled to an instruction on this defense if the evidence can support a finding that the defendant’s test, requirement, or practice is based on a factor other than age.  See generally Smith v. City of Jackson, 544 U.S. 228, 239 (2005) (“It is . . . in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was ‘reasonable.’”); see also Meacham v. Knolls Atomic Power Lab., 554 U.S. 84, 96 (2008) (noting that factor relied on by employer must be reasonable one, which may lean more heavily on older workers, as against younger ones). 

            In a disparate treatment case, instruction on RFOA as an affirmative defense will be unnecessary because the plaintiff already bears the burden of proving that the employer’s decision was, in fact, based on age.  See Smith, 544 U.S.at 238 (“In most disparate-treatment cases, if an employer in fact acted on a factor other than age, the action would not be prohibited under [the ADEA] in the first place.”).  Instructing the jury on RFOA in a disparate treatment case may cause confusion regarding the allocation of the burden of proof. 

            Unlike the “business necessity” defense applicable to disparate impact cases under Title VII, RFOA requires only that the factor have a reasonable relationship to a legitimate business purpose.  The employer is not required to tailor the factor narrowly to minimize its disparate impact on older workers.  See Smith, 544 U.S. at 243.  Thus, the instruction requires the defendant to show: (1) a factor other than age; (2) a legitimate business purpose; and (3) a reasonable relationship between the two.  See id. at 242 (non-age consideration disparately impacting older workers is “reasonable factor other than age” when it “respond[s] to the [employer’s] legitimate goal”). 

            The Supreme Court recently clarified that federal employees are not required to meet the “but-for” causation standard to establish age discrimination.  Babb v. Wilkie, 589 U.S. 399, 411-12 (2020) (analyzing 29 U.S. § 633a(a)).  Rather, a federal employee is entitled to relief upon a showing of being “subjected to unequal consideration.”  Id.  However, that showing will support only “injunctive or other forward-looking relief.”  Id. at413.  To “obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision,” a federal employee must satisfy the “but-for” causation standard.  Id. 

Revised June 2024

Comment 

            The following instructions address damages calculations in ADEA cases. For general discussion of damages in civil cases, see Chapter 5 (Damages).

            If you find for the plaintiff [on the plaintiff’s ADEA claim], you must determine the plaintiff’s damages.  Damages means the amount of money that will reasonably and fairly compensate the plaintiff for any loss of [pay] [wages] [benefits] you find was caused by the discriminatory act of the defendant.  You may award the following:

            Back Pay: 

1.         Award:  Back pay includes any [back wages] [lost pay] [and employee benefits] the plaintiff would have received from the date the defendant [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse employment action] the plaintiff to the [date of trial] [date the plaintiff [declined] [accepted] reinstatement]].  The plaintiff has the burden of proving both the existence and the amount of back pay by a preponderance of the evidence.

2.         Mitigation of Back Pay Award:  The plaintiff has a duty to undertake reasonable measures to minimize [his] [her] damages and the defendant is not required to compensate the plaintiff for avoidable damages.  Thus, your award of back pay should be reduced by the amount of damages that the plaintiff actually avoided, or could have avoided, if [he] [she] had made reasonable efforts.  The defendant has the burden of proving by a preponderance of the evidence that a reduction should be made and the amount by which the award should reduced. 

Therefore: 

a.      You must deduct any wages or other earnings that the defendant proved that the plaintiff received from other employment from the date the defendant [discharged] [failed to hire] [failed to promote] [demoted] [state other adverse employment action] the plaintiff to the [date of trial] [date the plaintiff [declined] [accepted] reinstatement].

[b.       You must deduct any severance pay [and pension benefits] that the defendant proved the plaintiff received after the discharge.] 

[b.] [c.] If the defendant proves by a preponderance of the evidence either: 

(i)        that the plaintiff unjustifiably failed to take a new job of like kind, status, and pay which was available to plaintiff, or 

(ii)       that the plaintiff failed to make reasonable efforts to find such new job; 

you must subtract from the back pay award the amount of money you find that the plaintiff could have earned from the time the plaintiff could have obtained such new job [or should have obtained from such new job, had [he] [she] made reasonable efforts to find such new job] to the [date of trial] [date the plaintiff [declined] [accepted] reinstatement].]

Comment 

            On the issue of whether or not front pay is an issue for the court or for the jury, see Traxler v. Multnomah County, 596 F.3d 1007, 1012-14 (9th Cir. 2010), and Cassino v. Reichold Chemicals, 817 F.2d 1338, 1346-47 (9th Cir. 1987).  If it is determined that the front pay issue should go to an advisory jury, consider using the following language: 

              Front Pay: 

a.         Award:  An award for front pay compensates the plaintiff for the loss of future [wages] [pay] [and employee benefits] that have been caused by the defendant’s discriminatory act.  You should award front pay to the plaintiff to compensate for these losses.  The plaintiff bears the burden of proving these losses by a preponderance of the evidence. 

b.         Limit on Front Pay Award:  Front pay is intended to be temporary in nature.  The plaintiff has a duty to make reasonable efforts to obtain a new job of like kind, status, and pay.  Thus, you must limit any award of front pay to compensate only for the period of time you find will be necessary for the plaintiff to obtain such a job if [he] [she] makes a reasonable effort.  The defendant has the burden of proving by a preponderance of the evidence that a reduction should be made and the amount by which the award should be reduced. 

c.         Reduction to Present Cash Value:  Any award of front pay must also be reduced to the present cash value of the award.

            Present cash value means the sum of money needed now that, when invested at a reasonable rate of return, would be sufficient to pay the front pay at the time in the future when the money would have been earned by the plaintiff.

            The rate of return to be applied in determining present cash value should be the interest that can reasonably be expected from safe investments that can be made by a person of ordinary prudence, who has ordinary financial experience and skill.  

d.         You should also consider decreases in the value of money that may be caused by future inflation. 

            Unlike a Title VII plaintiff, an ADEA plaintiff has a right to jury trial on the issue of back pay, as well as any mitigation issues.  See Lorillard v. Pons, 434 U.S. 575, 582-83 (1978) (characterizing this remedy as “legal”);  Tamosaitis v. URS Inc., 781 F.3d 468, 485 (9th Cir. 2015) (discussing Lorillard); Cassino, 817 F.2d at 1346 (9th Cir. 1987) (discussing jury trial on mitigation). 

            The remedies provisions of the ADEA incorporate the remedies from the Fair Labor Standards Act (FLSA).  See Lorillard, 434 U.S. at 578; see also 29 U.S.C. § 626(b) (ADEA remedies provision).  Thus, like the FLSA, the ADEA provides for the recovery of “unpaid minimum wages or unpaid overtime compensation,” which includes back pay, liquidated damages and equitable relief.  See 29 U.S.C. § 216 (FLSA remedies provision). 

            The Ninth Circuit has concluded that “back pay” under various federal statutes, generally includes tips, holiday pay, and overtime pay. See Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1157 (9th Cir. 2001). 

            An award of back pay is subject to the plaintiff’s duty to mitigate.  “An ADEA plaintiff must attempt to mitigate damages by exercising reasonable care and diligence in seeking re-employment after termination.  The defendant bears the burden of showing that there were suitable positions available and that the plaintiff failed to use reasonable care in seeking them.”  Cassino, 817 F.2d at 1345 (citation omitted).  The Ninth Circuit has not definitively taken a position on whether a jury should be instructed that, “after a period of looking for work unsuccessfully, [the plaintiff is] obligated to ‘lower his sights’” in order to procure mitigating employment.  See EEOC v. Pape Lift, Inc., 115 F.3d 676, 683 (9th Cir. 1997) (declining to reach issue because instruction was not requested at trial) (citing Ford Motor Co. v. EEOC, 458 U.S. 219, 232 n.16 (1982) (noting, without adopting principle, that some lower courts have indicated that “after an extended period of time searching for work without success, a claimant must consider taking a lower-paying position”)). 

            The ADEA does not provide for nonwage compensatory or punitive damages.  Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009);  Naton v. Bank of California, 649 F.2d 691, 698-99 (9th Cir. 1981).  Thus, a plaintiff cannot recover for emotional distress or pain and suffering under the ADEA.  Id.; see also Comm’r v. Schleier, 515 U.S. 323, 326 (1995) (“[T]he Courts of Appeals have unanimously held . . . that the ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress.”).  Nor were these remedies extended to the ADEA (as they were to Title VII actions) by the Civil Rights Act of 1991.  See Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (holding that while the Civil Rights Act of 1991 “expanded the coverage of Title VII, [it] did not amend the ADEA or speak to the subject of age discrimination”). 

            See also Instruction 11.14 (Age Discrimination—Damages—Willful Discrimination—Liquidated Damages).

Revised June 2024

            If you find that the plaintiff is entitled to recover back pay, you must also determine if the defendant's conduct was willful. The plaintiff has the burden of proving willfulness by a preponderance of the evidence. 

            A defendant’s conduct is willful if the defendant knew or showed reckless disregard for whether, the [describe the alleged discriminatory act] was prohibited by law. 

Comment 

            The ADEA incorporates the liquidated damages provision of the Fair Labor Standards Act (FLSA). 29 U.S.C. § 626(b) (ADEA remedies provision); see 29 U.S.C. § 216 (FLSA remedies provision). However, unlike the FLSA, the ADEA awards liquidated damages only if the defendant’s violation is willful. 29 U.S.C. § 626(b) (ADEA remedies provision); Lorillard v. Pons, 434 U.S. 575, 581 (1978); compare Bratt v. County of L.A., 912 F.2d 1066, 1071 (9th Cir.1990) (holding that under the FLSA, employer can only avoid liquidated damages by proving that it acted with "a good faith intent to comply with the FLSA and a reasonable basis for its interpretation of the FLSA and the applicable regulations."). 

            Willfulness is a question for the jury to decide. See EEOC. v. Pape Lift, Inc., 115 F.3d 676, 681 (9th Cir.1997). If the jury finds willfulness, the plaintiff is entitled to double the amount of back pay awarded. Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1348 (9th Cir.1987) ("By the express terms of the statute, liquidated damages are an additional amount equal to the backpay and benefits award."). The verdict form should provide a separate question as to willfulness. 

            An employer acts willfully when it "‘knew or showed reckless disregard’ for whether the ADEA prohibited its conduct." Cassino, 817 F.2d at 1348; see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 615 (1993) (reaffirming that "[t]he standard of willfulness that was adopted in Thurston–that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute"– applies to all disparate treatment cases under the ADEA); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1495 (9th Cir.1986).