The American Experience with Age Discrimination Through the Lens of Nine Supreme Court Cases (2004-2009)

Abstract

This Article is about the developing legal landscape of age discrimination law under the Age Discrimination in Employment Act (ADEA) in the United States in the first decade of the current century. Age discrimination is an issue in many societies; the problem posed by age discrimination becomes acute in societies where the population is graying, which describes the United States. There are numerous ways to gauge this developing legal landscape. The authors have chosen to use nine Supreme Court cases decided in the current decade. Five of the nine were decided in 2008. These nine cases cover a very wide spectrum of topics, ranging from three of the theories under which ADEA cases are brought (disparate impact; disparate treatment; and retaliation) to practical questions like what constitutes a charge of age discrimination under the ADEA, to what defenses an employer can raise to an employee's claim of age discrimination, to what forms ofevidence are admissible. The Article also highlights three cases that involve pension eligibility, reverse discrimination, and the use of alternative dispute resolution (arbitration) to resolve age discrimination disputes. The Article concludes with the authors sharing with the reader some practical advice about how to avoid falling off the edge of ADEA law as the legal landscape continues to develop.