The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, lay-off, compensation, benefits, job assignments, and training. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.
Recently, in Baker v. Macon Resources,Inc., 750 F.3d 674 (7th Cir. 2014), the United States Court of Appeals for the Seventh Circuit reversed the grant of summary judgment for the employer in an age discrimination case. The Court found that the employer treated a younger employee more leniently than the plaintiff for the same policy violation. Marga Baker, 56, worked as a caregiver for people with disabilities. Her employer, Macon Resources, Inc., had a written policy which required all employees who witnessed, heard of, or had reason to believe an incident of abuse or neglect had occurred to report the allegation to a supervisor. The employer found that Baker and Cross (a younger co-worker) had failed to report the abuse in violation of the policy. Baker was found to be an eye-witness to the abuse, and she was discharged. Cross, 39, was merely given a three-day suspension because the employer found that she had only received a report of abuse and had not actually witnessed it.
In an ADA disparate discipline case, the inquiry is whether a younger employee engaged in similar misconduct, but received lighter punishment. The employer in Baker argued that, even if Baker and Cross are objectively similar, it permissibly treated Baker more harshly because the director believed it significant that only Baker “witnessed” abuse. Baker replied that the employer’s professed reliance on witnessing is pretextual. The Seventh Circuit found that Baker had supplied adequate evidence that Cross is a comparable worker who engaged in similar misconduct yet received lighter treatment. The court noted that the company’s policy drew no distinction in imposing a duty to report among those who “witness” abuse, those who are “told of” it, and those who have “reason to believe” it occurred. 750 F. 3d at 676. As a result, the court found that a jury may reasonably infer pretext from flagrant inaccuracies or inconsistencies in an employer’s proffered reason for an employment decision which plaintiff demonstrated here. The court also found that sufficient evidence existed of selective enforcement and investigation of the company’s disciplinary policy to establish pretext. Id. at 677.
Baker emphasizes the importance for employers to consistently investigate complaints and enforce their own disciplinary policies in order to avoid a finding of liability for employment discrimination based on disparate treatment.