Discrimination against Subset of Older Workers Is Actionable    

Last week, the Third Circuit Court of Appeals held that discrimination against a subset of older workers, in this case those 50 and older, is actionable under the Age Discrimination in Employment Act (ADEA). Karlo v. Pittsburgh Glass Works, LLC (3d Cir. 2017).

The ADEA protects workers who are 40 and older from age discrimination. Most often, age discrimination claims are brought by workers 40 or older alleging that workers under 40 have been treated more favorably. However, in Karlo, workers aged 50 and older sued alleging that their company’s reduction in force hit them disproportionately harder than it hit workers in their 40s.

The Third Circuit’s decision splits from previous decisions of the Second, Sixth, and Eighth Circuits holding that such claims are not allowed. The Third Circuit covers employers doing business in Pennsylvania, New Jersey, Delaware, and Maryland. This decision further complicates reductions in force for employers in those states as they will need to check for disparate impacts not only on workers 40 and older in favor of workers under 40, but also among workers 40 and older.

The Ninth and Tenth Circuits, where most of our members have locations, have not addressed this issue. The split in the circuits will likely have to be resolved by the U.S. Supreme Court.