Model Jury - Section 12

CIVIL INSTRUCTIONS

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12. AGE DISCRIMINATION

12.01.01   PRELIMINARY JURY INSTRUCTION FOR AGE DISCRIMINATION CASES--DISPARATE TREATMENT (29 U.S.C. § 623)

   The plaintiff, , seeks damages against the defendant, , for [describe the alleged discriminatory act] based on age discrimination. The defendant denies age discrimination. To help you understand the evidence that will be presented in this case, I will explain some of the legal concepts for you.

   It is unlawful for an employer to discriminate against any employee because of that employee's age when the employee is 40 years of age or older.

   The plaintiff has the burden of proving by a preponderance of the evidence that plaintiff was 40 years of age or older at the time of [describe the alleged discriminatory act] and that age was a [motivating] factor in the defendant's decision to [describe the alleged discriminatory act].

   The defendant contends [that age is a part of a bona fide occupational qualification] [that the treatment of the plaintiff was in compliance with a bona fide [seniority system] [benefit plan]]. The defendant has the burden of proving [this] [these] defense[s] by a preponderance of the evidence.

   [To establish the defense of bona fide occupational qualification the defendant has the burden of proving that [employees over the age qualification would be unable to perform the job safely and efficiently] [or] [that it was impossible or highly impractical to consider the qualifications of each older employee] and that the bona fide occupational qualification is reasonably necessary to the operation of the business.]

   [To establish that the plaintiff was [describe the alleged discriminatory act] in compliance with a bona fide seniority system, the defendant has the burden of proving that the system has legitimate goals and that the defendant uses the employees' length of service as the primary consideration in selecting employees who will not be [describe the alleged discriminatory act].]

   [To establish that the plaintiff was [describe the alleged discriminatory act] in compliance with a legitimate employee benefit plan, the defendant has the burden of proving that the benefit plan existed and that the defendant followed the terms of the plan and that defendant had a legitimate, non-discriminatory reason for [describe the alleged discriminatory act].]

   If you find that the defense has been proved, then you will find for the defendant. On the other hand, if you find that the plaintiff has proved plaintiff's claim of age discrimination and no defense has been proved, then you will find for the plaintiff and determine what, if any, damages the plaintiff sustained.

Comment

   The words "motivating factor" apply in Title VII cases. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, § 107. It is possible that the courts will be guided by this standard in ADEA cases.

   See Comment to Instruction 12.01.02.

12.01.02   AGE DISCRIMINATION--DISPARATE TREATMENT ELEMENTS AND BURDEN OF PROOF--DISCHARGE

    Plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   the plaintiff was discharged;

   2.   the plaintiff was 40 years of age or older at the time of discharge; and

   3.   the plaintiff's age was a [motivating] factor in the defendant's decision to discharge the plaintiff.

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]

Comment

   If defendant offers a bona fide employee benefit plan defense (see Instruction 12.01.06), then add the following element: "4. If you find that the treatment of the plaintiff was part of a bona fide employee benefit plan, plaintiff must also prove that the provisions of the defendant's employee benefit plan were used to discriminate in a non-fringe benefit aspect of the employment relationship." See American Ass'n of Retired Persons v. Farmers Group, 943 F.2d 996 (9th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 937 (1992). Add appropriate paragraphs similar to those in Instructions 5.03, 5.04, or 5.05.

   This instruction and Instruction 12.01.03 refer to common examples of age discrimination. For other acts of age discrimination relating to compensation, terms, and conditions of employment, modify the instructions accordingly. 29 U.S.C. § 623(a).

   See Comment to Instruction 12.01.01.

12.01.03   AGE DISCRIMINATION--DISPARATE TREATMENT ELEMENTS AND BURDEN OF PROOF--FAILURE OR REFUSAL TO HIRE--

     NO AFFIRMATIVE DEFENSE

    Plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   the plaintiff was not hired;

   2.   the plaintiff was 40 years of age or older at the time of the [failure] [refusal] to hire; and

   3.   the plaintiff's age was a [motivating] factor in the defendant's decision not to hire.

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]

Comment

   This instruction and Instruction 12.01.02 refer to common examples of age discrimination. For other acts of age discrimination relating to compensation, terms, and conditions of employment, modify the instructions accordingly. 29 U.S.C. § 623(a).

   See Comment to Instruction 12.01.01.

12.01.04   AGE DISCRIMINATION--DISPARATE TREATMENT--AFFIRMATIVE DEFENSE--BONA FIDE OCCUPATIONAL QUALIFICATIONS

   The defendant contends that age is a part of a bona fide occupational qualification. The defendant has the burden of proving each of the following by a preponderance of the evidence:

   1.   that the occupational qualification is reasonably necessary to the operation of the business; and

   2.   [that defendant had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform the job safely and efficiently] [or] [that it was impossible or highly impractical to consider the qualifications of each older employee.]

Comment

   See 29 U.S.C. § 623(f)(1).

12.01.05   AGE DISCRIMINATION--DISPARATE TREATMENT--AFFIRMATIVE DEFENSE--BONA FIDE SENIORITY SYSTEM

   The defendant contends that the treatment of the plaintiff was based upon a bona fide seniority system. The defendant has the burden of proving each of the following by a preponderance of the evidence:

   1.   the seniority system had legitimate goals and was not designed to discriminate on the basis of age; and

   2.   it used the employee's length of service as the primary consideration in selecting the employees who will not be [describe the alleged discriminatory act].

Comment

   See 29 U.S.C. § 623(f)(2)(A).

12.01.06   AGE DISCRIMINATION--DISPARATE TREATMENT--AFFIRMATIVE DEFENSE--BONA FIDE EMPLOYEE BENEFIT PLAN

   The defendant contends that the treatment of the plaintiff was part of a bona fide employee benefit plan. The defendant has the burden of proving each of the following by a preponderance of the evidence:

   1.   the employee benefit plan was bona fide, that is, it existed and provided for and paid benefits to employees; and

   2.   the defendant followed the terms of the plan.

Comment

   See 29 U.S.C. § 623(f)(2)(B). The statute lists retirement insurance and pension plans as examples of covered plans. Simple fringe benefit plans such as severance pay policies, lay-off benefits, and accrued sick leave payments may not qualify for this exemption.

   See Comment to Instruction 12.01.02.

12.02.01   PRELIMINARY JURY INSTRUCTIONS FOR AGE DISCRIMINATION CASES--DISPARATE IMPACT

   The plaintiff, , seeks damages against the defendant, , for age discrimination. The defendant denies age discrimination. To help you understand the evidence that will be presented in this case, I will explain some of the legal concepts for you.

   The plaintiff claims that while defendant's [employment practice] [selection criterion] appears to treat people of different ages equally, it has the effect of discriminating against persons 40 years of age or older.

   The plaintiff has the burden of proving through statistical evidence that the defendant's [employment practice] [selection criterion] caused the exclusion of plaintiff from a [job] [promotion] because of plaintiff's age.

   [The plaintiff also has the burden of proving that defendant's [employment practice] [selection criterion] was not based on business necessity, or if it was based on business necessity that another [employment practice] [selection criterion] without a similarly discriminatory effect would serve the defendant's legitimate business interests and the defendant refused to adopt such alternate [employment practice] [selection criterion].]

   The defendant claims that its [employment practice] [selection criterion] was based on business necessity. The defendant has the burden of proving this defense by a preponderance of the evidence. If you find the defense has been proved, then you will find for the defendant unless you find the plaintiff has proved by a preponderance of the evidence that another [employment practice] [selection criterion] without a similarly discriminatory effect would serve the defendant's legitimate business interests and the defendant has refused to adopt such alternate [employment practice] [selection criterion].]

Comment

   In instructing on business necessity, review the Comments to Instructions 12.02.02 and 12.02.03 on burden of proof. Use the paragraph in this instruction which corresponds with the decision on which party bears the burden of proof on this issue.

   This instruction was drafted on the assumption that a disparate impact claim, where there is a factual dispute, is a question for the jury. It is unclear, however, whether a disparate impact claim is a question of law to be determined by the court or a question of fact to be determined by the trier of fact. In light of the 1991 Civil Rights Act, the court should consider whether a disparate impact instruction is appropriate. Cf. H.R. Rep. No. 102-40(I), 102 Cong., 2d Sess., pt. I, at 72 n.66 (1991) (At least with regard to Title VII and the Americans With Disabilities Act actions, "compensatory and punitive damages may not be sought with regard to claims based on the disparate impact theory ... [so] a jury trial would not be available for such claims.").

   In cases based on both disparate impact and disparate treatment theories, courts have suggested the propriety of disparate impact instructions when the plaintiff has made out a prima facie disparate impact case. See MacPherson v. University of Montevallo, 922 F.2d 766, 772 (11th Cir. 1991); Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1368-70, 1374, 1380 (2d Cir. 1989), cert. denied, 494 U.S. 1026 (1990); Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.) cert. denied, 464 U.S. 937 (1983); Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1419-20 (11th Cir. 1986) (Where plaintiff failed to specifically address disparate impact theory at the pretrial conference, court did not abuse its discretion by refusing to instruct the jury on that theory.), cert. denied, 479 U.S. 1090 (1987); Monroe v. United Air Lines, Inc., 736 F.2d 394, 404 n.3 (7th Cir. 1984) (court correctly instructed jury on disparate impact and disparate treatment claims), cert. denied, 470 U.S. 1004 (1985); Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1322-23 (11th Cir. 1982) (both disparate impact and disparate treatment theories properly submitted to the jury).

   A unanimous Supreme Court recently noted a question of whether "a disparate impact theory of liability is available under the ADEA," Hazen Paper Co. v. Biggins, ___ U.S. ___, 113 S. Ct. 1701, 1706 (1993) (dictum), and three justices questioned "incorporating in the ADEA context the so-called `disparate impact' theory of Title VII of the Civil Rights Act of 1964 .... [W]e have not yet addressed the question whether such a claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA." Id. at 1710. (Kennedy, Rehnquist, Thomas, JJ., concurring).

12.02.02   AGE DISCRIMINATION--DISPARATE IMPACT--ELEMENTS AND BURDEN OF PROOF

   Plaintiff has the burden of proving each of the following by a preponderance of the evidence:

   1.   the plaintiff was [not hired] [describe other specific act asserted as discrimination];

   2.   the plaintiff was 40 years of age or older at the time of the [failure to hire] [describe other specific act asserted as discrimination];

   3.   the defendant had a specific [employment practice] [selection criterion] which caused plaintiff to be excluded from [a job] [describe other specific act asserted as discrimination] because of plaintiff's age; and

   4.   the defendant's [employment practice] [selection criterion] had a substantial disparate impact on persons 40 years of age or older [and]

   [5.   if the defendant presents a business necessity defense, see Comment].

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]

Comment

   See Comment to Instruction 12.02.01.

   This following element should be included if the defendant presents a business necessity defense and if the plaintiff has the burden of disproving this defense.

   "5. [That defendant's [employment practice] [selection criterion] was not based on business necessity, or if it was based on business necessity that another [employment practice] [selection criterion] without a similarly discriminatory effect would serve the defendant's legitimate business interests and the defendant has refused to adopt such alternate [employment practice] [selection criterion].]"

   This fifth element is included when the defendant has produced evidence that its disparate [employment practice] [selection criterion] is based on legitimate business reasons, such as job relatedness or business necessity. While the ADEA statute is silent on who has the burden of proof on the issue of business necessity, the courts have held the plaintiff bears the ultimate burden of disproving business necessity. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990).

   This instruction was drafted on the assumption that courts might be guided in ADEA cases by the standards in Title VII cases. However, a unanimous Supreme Court recently noted a question of whether "a disparate impact theory of liability is available under the ADEA." Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1706 (1993) (dictum). See Comment to Instruction 12.02.01.

   However, if a trial judge decides that a disparate impact theory is appropriate, the judge should examine the Civil Rights Act of 1991 which, in response to the Wards Cove decision, amended Section 703 of the Civil Rights Act of 1964 to provide that the defendant shall demonstrate business necessity and thus appears to have placed the burden of proving business necessity on the defendant. 42 U.S.C. § 2000 e-2 (k)(1)(A). Therefore, if the defendant has the burden of proving business necessity in an ADEA case and the defendant presents a business necessity defense, give Instruction 12.02.03 and add the following element to 12.02.02:

   "5. If you find that the defendant has proved that the defendant's [employment practice] [selection criterion] was based on legitimate business reasons, plaintiff must also prove that [an employment practice] [a selection criterion] without a similarly discriminatory effect would serve the defendant's legitimate business interests and the defendant has refused to adopt the [employment practice] [selection criterion]."

   See Comment to Instruction 12.02.03.

12.02.03   AGE DISCRIMINATION--DISPARATE IMPACT--AFFIRMATIVE DEFENSE--BUSINESS NECESSITY

   The defendant contends that its [employment practice] [selection criterion] was based on legitimate business reasons.

   The defendant has the burden of proving each of the following by a preponderance of the evidence:

   1.   the [employment practice] [selection criterion] is job related for the position in question; and

   2.   the [employment practice] [selection criterion] is consistent with business necessity.

[Add appropriate concluding paragraphs from Instructions 5.03, 5.04, or 5.05.]

Comment

   A business necessity defense may not be used as a defense against a claim of intentional discrimination. 42 U.S.C. § 2000e-2(k)(2).

   See Comment to Instruction 12.02.02.

12.03.01   AGE DISCRIMINATION--DAMAGES--COMPENSATORY--REDUCTION--MITIGATION

   If you find for the plaintiff [on plaintiff's ________________________________ claim], you must determine plaintiff's damages. Plaintiff has the burden of proving damages by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the plaintiff for any loss of [pay] [wages] [benefits] you find was [proximately] [legally] caused by the discriminatory act of the defendant. You should consider the following:

   [The plaintiff's damages include back pay, that is [back wages] [lost pay] [and employee benefits] plaintiff would have received from the date the defendant [discharged] plaintiff to the [date of trial] [date plaintiff [declines] [accepts] reinstatement].]

   [You must deduct any wages or other earnings plaintiff received from other employment from the date the defendant [discharged] plaintiff to the [date of trial] [date the plaintiff [declines] [accepts] reinstatement.]]

   [You must deduct any severance pay [and] [pension benefits] received after the [discharge].]

   [If the defendant proves by a preponderance of the evidence that plaintiff unjustifiably failed to take a new job of like kind, status and pay which was available to plaintiff, or failed to make reasonable efforts to find a new job, you should subtract from these damages any amount plaintiff could have earned in a new job after the discharge.]

   [The plaintiff's damages also include front pay, that is, the loss of future [wages] [pay] [and employee benefits] from the defendant.]

   [You must deduct from any front pay any wages or other earnings [and employee benefits] plaintiff would receive after the date of trial using reasonable mitigation efforts.]

Comment

   See Instructions 7.01-.04.

   An award of front pay is appropriate if the court first determines that reinstatement is not feasible. Cassino v. Reichhold Chems., 817 F.2d 1338, 1346 (9th Cir. 1987), cert. denied, 484 U.S. 1047 (1988).

12.03.02   AGE DISCRIMINATION--DAMAGES--LIQUIDATED

   If you find the plaintiff is entitled to recover compensatory damages, and if you find the plaintiff has proved by a preponderance of the evidence that the defendant acted willfully, the plaintiff is entitled to receive, in addition to compensatory damages, liquidated damages in an amount equal to the [back wages] [lost pay] [and employee benefits] you have awarded plaintiff.

   A defendant's conduct is willful if the defendant knew or showed reckless disregard for whether the [describe the alleged discriminatory act] was prohibited by the law.

Comment

   See Trans World Airlines v. Thurston, 469 U.S. 111 (1985); Gilchrist v. Jim Slemons Imports, 803 F.2d 1488, 1494-95 (9th Cir. 1986); Cassino v. Reichhold Chems., 817 F.2d 1338, 1348 (9th Cir. 1987).

   29 U.S.C. § 626(b) incorporates the liquidated damages provision of the Fair Labor Standards Act, 29 U.S.C. § 216(b).

   Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1708-09 (1993) (A unanimous court noted court of appeals confusion about the meaning of the term "willful" and reaffirmed that "[t]he standard of willfulness that was adopted in Thurston--that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute ..." applies to all disparate treatment cases under the ADEA. (citing McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988))).