Age Discrimination,
Education, Advocacy and Research Foundation, LLC.
president
Rhonda Dedo
Since 1974, the Age Discrimination in Employment Act of 1967 (29 U.S.C. 621) has prohibited States from discriminating in employment on the basis of age. In EEOC v. Wyoming, 460 U.S. 226 (1983), the Supreme Court upheld Congress's constitutional authority to prohibit States from discriminating in employment on the basis of age. The prohibitions of the ADEA remain in effect and continue to apply to the States, as the prohibitions have for more than 25 years.

June, 2005
(Washington, D.C.) Private civil suits by the victims of employment discrimination have been a crucial tool for enforcement of the ADEA since the enactment of that Act. In Kimel v. Florida Board of Regents, 528 U.S. 62, however, the Supreme Court held that Congress had not abrogated State sovereign immunity to suits by individuals under the ADEA. The Federal Government has an important interest in ensuring that Federal financial assistance is not used to subsidize or facilitate violations of the ADEA. Private civil suits are a critical tool for advancing that interest.
executive director
Steven Hale
Age discrimination in employment remains a serious problem both nationally and among State agencies, and has invidious effects on its victims, the labor force, and the economy as a whole. For example, age discrimination in employment--
Representatives: (A) increases the risk of unemployment among older workers, who will as a result be more likely to be dependent on government resources;
Northeast:
  Rob Martin
(B) prevents the best use of available labor resources;
Midwest:
  James Goodall
(C) adversely effects the morale and productivity of older workers; and
Western:
  Brian Harris
(D) perpetuates unwarranted stereotypes about the abilities of older workers.
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ADEA Research Foundation
P.O.Box 131145
Washington, D.C. 01423

As a result of the Kimel decision, although age-based discrimination by State employers remains unlawful, the victims of such discrimination lack important remedies for vindication of their rights that are available to all other employees covered under that Act, including employees in the private sector, local government, and the Federal
Government. Unless a State chooses to waive sovereign immunity, or the Equal
Employment Opportunity Commission brings an action on their behalf, State employees
victimized by violations of the ADEA have no adequate Federal remedy for violations of
that Act. In the absence of the deterrent effect that such remedies provide, there is a
greater likelihood that entities carrying out programs and activities receiving
Federal financial assistance will use that assistance to violate that Act, or that the assistance will
otherwise subsidize or facilitate violations of that Act.
Federal law has long treated nondiscrimination obligations as a core component of
programs or activities that, in whole or part, receive Federal financial assistance. That
assistance should not be used, directly or indirectly, to subsidize invidious discrimination.
Assuring nondiscrimination in employment is a crucial aspect of assuring
nondiscrimination in those programs and activities.
Discrimination on the basis of age in programs or activities receiving Federal financial
assistance is, in contexts other than employment, forbidden by the Age Discrimination Act
of 1975 (42 U.S.C. 6101 et seq.). Congress determined that it was not necessary for the
Age Discrimination Act of 1975 to apply to employment discrimination because the
ADEA already forbade discrimination in employment by, and authorized suits against,
State agencies and other entities that receive Federal financial assistance. In section 1003
of the Rehabilitation Act Amendments of 1986 (42 U.S.C. 2000d-7), Congress required
all State entities subject to the Age Discrimination Act of 1975 to waive any immunity
from suit for discrimination claims arising under the Age Discrimination Act of 1975. The
earlier limitation in the Age Discrimination Act of 1975, originally intended only to avoid
duplicative coverage and remedies, has in the wake of the Kimel decision become a
serious loophole leaving millions of State employees without an important Federal remedy
for age discrimination, resulting in the use of Federal financial assistance to subsidize or
facilitate violations of the ADEA.

The Supreme Court has upheld Congress's authority to condition receipt of Federal
financial assistance on acceptance by the States or other covered entities of conditions
regarding or related to the use of that assistance, as in Cannon v. University of Chicago,
441 U.S. 677 (1979). The Court has further recognized that Congress may require a State,
as a condition of receipt of Federal financial assistance, to waive the State's sovereign
immunity to suits for a violation of Federal law, as in College Savings Bank v. Florida
Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999). In the wake of the
Kimel decision, in order to assure compliance with, and to provide effective remedies for
violations of, the ADEA in State programs or activities receiving or using Federal
financial assistance, and in order to ensure that Federal financial assistance does not
subsidize or facilitate violations of the ADEA, it is necessary to require such a waiver as a
condition of receipt or use of that assistance.

A State's receipt or use of Federal financial assistance in any program or activity of a
State will constitute a limited waiver of sovereign immunity under section 7(g) of the
ADEA (as added by section 404). The waiver will not eliminate a State's immunity with
respect to programs or activities that do not receive or use Federal financial assistance.
The State will waive sovereign immunity only with respect to suits under the ADEA
brought by employees within the programs or activities that receive or use that assistance.
With regard to those programs and activities that are covered by the waiver, the State
employees will be accorded only the same remedies that are accorded to other covered
employees under the ADEA.

The Supreme Court has repeatedly held that State sovereign immunity does not bar
suits for prospective injunctive relief brought against State officials, as in Ex parte Young
(209 U.S. 123 (1908)). Clarification of the language of the ADEA will confirm that that
Act authorizes such suits. The injunctive relief available in such suits will continue to be
no broader than the injunctive relief that was available under that Act before the Kimel
decision, and that is available to all other employees under that Act.

In Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971), the Supreme Court
recognized that title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.)
`proscribes not only overt discrimination [in employment] but also [employment]
practices that are fair in form, but discriminatory in operation. . . .' In doing so, the Court
relied on section 703(a)(2) of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2
(a)(2)), which contains language identical to section 4(a)(2) of the ADEA, except that the
latter substitutes the word age for the grounds of prohibited discrimination specified by
http://thomas.loc.gov/cgi-bin/query/F?c108:1:./temp/~c108Nc5nth:e72001: (3 of 9)11/11/2004 8:37:23 AM `race, color, religion, sex, or national origin.' The
Court has confirmed that this and other related statutory language, identical to both title
VII of the Civil Rights Act of 1964 and the ADEA, supports application of the disparate
impact doctrine. Connecticut
v. Teal, 457 U.S. 440 (1982); General Electric Co. v. Gilbert, 429 U.S. 125 (1976).

Other indicia of Congress's intent to permit the disparate impact method of proving
violations of the ADEA are legion, and include numerous other textual parallels between
the ADEA and title VII of the Civil Rights Act of 1964, such as in the two laws'
substantive prohibitions. Lorillard v. Pons, 434 U.S. 575, 584 (1978) (the ADEA's
substantive prohibitions `were derived in haec verba from Title VII'). Moreover, the
ADEA and title VII of the Civil Rights Act of 1964 share `a common purpose: `the
elimination of discrimination in the workplace,'. McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352, 358 (1995) (quoting Oscar Mayer &Co. v. Evans, 441 U.S. 750, 756
(1979)). Interpreting title VII of the Civil Rights Act of 1964 in a consistent manner is
particularly appropriate when `the two provisions share a common raison d'etre.'.
Northcross v. Board of Educ. of Memphis City Schools, 412 U.S. 427, 428 (1973).

The ADEA's legislative history confirms Congress's intent to redress all `arbitrary'
age discrimination in the workplace, including arbitrary facially neutral policies and
practices falling more harshly on older workers. Such policies continue to be based on the
kind of `subconscious stereotypes and prejudices' which cannot be `adequately policed
through disparate treatment analysis,' and thus, require application of the disparate impact
theory of proof. Watson v. Fort Worth Bank &Trust, 487 U.S. 977, 990 (1988). As the
Supreme Court has noted, these prejudices are `the essence of age discrimination.'. Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610, n.15 (1993).

In 1991, Congress reaffirmed that title VII of the Civil Rights Act of 1964 permits
victims of employment bias to state a cause of action for disparate impact discrimination
when it added a provision to title VII of the Civil Rights Act of 1964 to clarify the burden
of proof in disparate impact cases in section 703(k) of the Civil Rights Act of 1964 (42 U.
S.C. 2000e-2(k)).

Subsequently, several lower courts and Federal Courts of Appeal have mistakenly
relied on language in the Supreme Court's opinion in Hazen Paper Co. v. Biggins, 507 U.
S. 604 (1993), to suggest that the disparate impact method of proof does not apply to
claims under the ADEA. Mullin v. Raytheon Co., 164 F.3d 696, 700-01 (1st Cir. 1999);
EEOC v. Francis W. Parker School, 41 F.3d 1073, 1076-77 (7th Cir. 1994); Ellis v.
United Airlines, Inc., 73 F.3d 999, 1006-07 (10th Cir. 1996); DiBiase v. Smithkline
Beecham Corp., 48 F.3d 719, 732 (3d Cir. 1995); Lyon v. Ohio Educ. Ass'n and Prof'l
Staff Union, 53 F.3d 135, 139 n.5 (6th Cir. 1995). Congress did not intend the ADEA to
be interpreted to provide older workers less protections against discrimination than those
protected under title VII of the Civil Rights Act of 1964. As a result, it is necessary to
clarify the burden of proof in a disparate impact case under the ADEA, and thereby
reaffirm that victims of age discrimination in employment discrimination may state a
cause of action based on the disparate impact method of proving discrimination in
appropriate circumstances.