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Jun 2002
01
June 01, 2002

Sixth Circuit Recognizes Reverse Discrimination Suit Under ADEA

In a break from other federal courts, the United States Court of Appeals for the Sixth Circuit (which encompasses Michigan) has recognized a claim for "reverse discrimination" under the Age Discrimination in Employment Act. In Cline v. General Dynamics Land Systems, Inc., the court held that an employee can make out a claim of age discrimination if his or her employer treats an older employee more favorably on the basis of age. In Cline, General Dynamics and the UAW had been bound by a collective bargaining agreement that obligated General Dynamics to provide full health benefits to retired workers. General Dynamics and the UAW negotiated a new contract in 1997 that no longer required General Dynamics to provide health benefits to retirees, except that employees who were 50 years of age or older at the time of the new contract were "grandfathered" and still eligible for full health benefits upon retirement. Employees who were between ages 40 and 49 then sued for age discrimination, claiming that the company could not lawfully treat older employees more favorably than them simply on the basis of age. The Sixth Circuit agreed, holding that a reverse discrimination claim is actionable under the ADEA. This decision is a marked break from other federal courts, which have held that a plaintiff cannot sustain a reverse discrimination claim under the ADEA.

The Cline decision may be appealed to the United States Supreme Court, but for now Michigan employers must be wary. For example, if a company selects a 55-year-old employee for promotion over a 42-year-old employee, the younger employee may potentially have a reverse discrimination claim under the ADEA. Recall that the ADEA protects individuals age 40 and over only, and so a 35-year-old worker may not sue under the ADEA. However, reverse age discrimination claims are also recognized under Michigan's Elliott-Larsen Civil Rights Act, and so workers under age 40 may sue under this state law.

Fortunately, the reach of the Cline decision is limited. Employers often provide benefits to employees based upon factors that may correlate with age, such as seniority. This practice remains lawful, as long as age itself is not a factor. For example, it is lawful to provide extra vacation time to employees with longer service, even though these employees may tend to be older. In addition, the Cline decision should not affect early retirement plans that specify a minimum age requirement, as long as these plans otherwise satisfy the requirements of the ADEA, because the statute specifically recognizes the validity of such plans.

Even where an employee can sue for reverse age discrimination, a younger worker is not guaranteed to prevail merely because an older worker received more favorable treatment. The younger employee must prove that age was at least a motivating factor in the employer's decision, and that will often be difficult to prove in a reverse discrimination case. (This was not a problem for the plaintiffs in the Cline case, because the company's decision was clearly based on age.)

Our best advice to employers has not changed. Employers should be sure that they do not take age into account in making employment decisions such as hiring, firing, and promotions. Most employers have been careful to ensure that they do not treat younger workers more favorably than older workers, but employers must also ensure that they do not treat younger workers less favorably than older workers because of age. In other words, the goal is to provide an even playing field for all, regardless of age.

For more information, contact your WN&J attorney.
 

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