Outcome on Appeal: Affirmed [defendant]. Grounds: Defendants who eliminated retiree life insurance made out defense of reasonable factors other than age, as a matter of law, based on evidence of cost-reduction ($4M annual cash savings, expense reductions of $9.4M and reduction of accrued balance sheet liabilities by $72.4M). 29 C.F.R. § 1625.10(a), concerning "significant cost reductions," only applies to equal cost/equal benefit safe harbor in 29 U.S.C. § 623(f)(2)(B)(i), not RFOA in 29 U.S.C. § 623(f)(1). Reduction in health benefits was authorized by 29 C.F.R. § 1625.32; plaintiffs' arguments was not a valid exercise of administrative power because it supposedly conflicted with the Older Workers Benefit Protection Act rejected, following Third Circuit in AARP v. EEOC, 489 F.3d 558 (3d Cir. 2007).

Localities opting-in to OPPRS commit, among other things, not to hire officers over the age of 45. Although such age limitations are generally barred by the ADEA, by a fluke of history (revisited at length in the panel opinion), Congress grandfathered in age-based limits for public-safety officers that were in effect on or before March 3, 1983 (29 U.S.C. § 623(j)). The 1977 OPPRS legislation falls into that exclusion.

Since ERIs are geared toward older workers, if they are not structured properly, they may expose employers to age discrimination lawsuits under the Age Discrimination in Employment Act ("ADEA"). The ADEA makes it unlawful to take an adverse employment action against persons over the age of 40, including discriminating against the employee with respect to his or her compensation, terms, conditions, or privileges of employment because of the employee's age. (29 U.S.C. §623.) Two measures can limit exposure to ADEA liability: (1) appropriate structuring of the ERI; and (2) obtaining legally enforceable waivers and releases in exchange for the ERI.Structuring An Early Retirement IncentiveVoluntary ERIs fall under a "safe harbor" provision to the ADEA. (29 U.S.C. §623(l).)

A cavalcade of employee victories -- a former police officer threads a loophole in the ADEA, 29 U.S.C. § 623(j)(2), exemption for law enforcement agencies in the Seventh Circuit; the Eighth Circuit straightens out a district court judge on an evidentiary issue; and a pro se flight data specialist enjoys a reversal of fortune in the Ninth Circuit, owing to a recent Supreme Court decision.Davis v. Indiana State Police, No. 07-2543 (7th Cir. Sept. 3, 2008): Here's a state trooper who left the force at age 42 and tried to return two months later, only to have the department bar his return because of his age (the maximum hire-age under state policy was age 40). This complaint was dismissed for failure to state a claim because the district court believed that that the decision was entirely subsumed by the law-enforcement exemption under 29 U.S.C. § 623(j)(2): that decisions "pursuant to a bona fide hiring or retirement plan that is not a subterfuge to evade the purposes of this chapter" are beyond the ADEA.

This basically means that the termination or other adverse action at issue would not have happened without the unlawful discriminatory motive. This standard is grounded in the language of the statute, 29 U.S.C. § 623(a), prohibiting discrimination “because of” an employee’s age. See id. at 176-77.

But whether the ADEA similarly protects job applicants from disparate impact remains unsettled. The ADEA’s disparate impact provision (29 U.S.C. § 623(a)(2)) refers to “employees,” unlike the statute’s disparate treatment provision (29 U.S.C. § 623(a)(1)), which refers more broadly to “individuals.” This difference led the Eleventh Circuit, sitting en banc, to conclude in Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016) (en banc), cert.

The Seventh Circuit creates a split with the Eleventh Circuit, holding that job applicants may bring claims for disparate impact under the ADEA under 29 U.S.C. § 623(a)(2). The panel majority allows a challenge to an employer's classification of an in-house Senior Counsel position as "3 to 7 years (no more than 7 years) of relevant legal experience."Kelber v. CareFusion Corp., No. 17‐1206 (7th Cir. Apr. 26, 2018): Though the Supreme Court has confirmed that the ADEA does permit disparate impact (i.e., non-intentional policies that nevertheless have the effect of screening out protected-class employees), Smith v. City of Jackson, 544 U.S. 228 (2005), it is unsettled whether such claims may be brought in the context of hiring.Kelber was a 58-year-old attorney when he "applied for a position as 'Senior Counsel, Procedural Solutions' with defendant CareFusion, a healthcare products company.

3009, 3009–23.[4] June 14, 2017 letter from Victoria A. Lipnic, Acting Chair, U.S. Equal Employment Opportunity Commission, www.eeoc.gov/eeoc/history/adea50th/index.cfm.[5] 29 U.S.C. 623(a)(1) and (2).[6] 29 U.S.C. 623(d).

After addressing a jurisdictional speedbump (the defendant challenged the form of the notice of appeal, which the panel rejects), the panel takes on the main issue of appeal, "whether so-called 'subgroup' disparate-impact claims are cognizable under the ADEA."In answering this question, the panel notes that the provision of the ADEA that provides for disparate impact "makes it unlawful for an employer 'to adversely affect [an employee's] status . . . because of such individual's age.'" 29 U.S.C. § 623(a)(2). This language, the panel holds, supports the viability of subgroup claims because of "(1) the focus on age as the relevant protected trait, as interpreted by O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), and (2) the focus on the rights of individuals, as interpreted by Connecticut v. Teal, 457 U.S. 440 (1982)."

Use statistical analysis to ascertain the risk of a disparate impact on older workers. Importantly, this analysis should be conducted and reviewed before an employment practice goes into effect, not after litigation begins.1 29 U.S.C. § 623(f)(1).2 544 U.S. 228 (2005).3 554 U.S. 84 (2008).4Smith, 544 U.S. at 239; 29 U.S.C. § 623(f)(1). Smith further explains, "We note that if Congress intended to prohibit all disparate-impact claims, it certainly could have done so. . . .