11.8 AGE DISCRIMINATION—DEFENSES–BONA FIDE SENIORITY SYSTEM

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;

2.	the seniority system used the employee's length of service as the primary consideration in selecting the employees who would [describe the alleged discriminatory action][.] [; and]

[3.	the seniority system did not place the plaintiff in a position in which a reasonable person in that position would believe that [he] [she] had no choice but to retire.]

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.").