Age Discrimination Articles
A referee of the Connecticut Office of Public Hearings found that an employee under age
40 could state an age discrimination claim under the Connecticut Fair Employment Practices Act
(CFEPA). CHRO v. NERAC, Inc., CHRO Case No. 0840031 (Aug. 2, 2012). The referee also
held the male employee could state a pregnancy related sex discrimination claim under the Act
based on his wife’s pregnancy. The man claimed he was fired based on his age and after his wife
became pregnant.
The referee found the employee was able to state a claim for age discrimination because
state law is broader than the federal Age Discrimination in Employment Act, which requires a
claimant to be at least 40 years old in order to be covered by that law. While acknowledging that
when interpreting state discrimination statutes the courts often look to federal precedence for
guidance, no such guidance is required here. Although the express language of the federal law
specifically requires a claimant to be at least 40 years old, CFEPA has no such minimum
requirement per se. In addition, state discrimination law is generally considered broader than
federal law.
While the referee’s decision was in response to the company’s motion to dismiss, and has
not been subject to appeal, at least two federal judges have looked to federal law for guidance
and have held that CFEPA does not cover claims of age discrimination made by persons under
40. Guglietta v. Meredith Corp., 301 F. Supp. 2d 209 (D. Conn. 2004), and Rogers v. First
Union National Bank, 259 F. Supp. 200, 209 (D. Conn. 2003). The referee’s decision follows a
pattern of hearing officers ignoring court rulings on interpretive issues and damage awards.
With regard to the gender claim, the employee alleged he was fired because his company
was concerned about increased health care costs related to his wife’s pregnancy. Although the
referee recognized that traditional pregnancy based claims are normally made by women,
claimant’s sex was not a bar to bringing such a claim. The referee also cited a recent EEOC case
in which a male was permitted to file a complaint alleging he suffered pregnancy discrimination
when his wife became pregnant.
As evidenced by this case, employers must base any employment decision on a non-
discriminatory business reason, and be able to credibly articulate that reason if faced with a legal
challenge, even one that is unexpected.
40 could state an age discrimination claim under the Connecticut Fair Employment Practices Act
(CFEPA). CHRO v. NERAC, Inc., CHRO Case No. 0840031 (Aug. 2, 2012). The referee also
held the male employee could state a pregnancy related sex discrimination claim under the Act
based on his wife’s pregnancy. The man claimed he was fired based on his age and after his wife
became pregnant.
The referee found the employee was able to state a claim for age discrimination because
state law is broader than the federal Age Discrimination in Employment Act, which requires a
claimant to be at least 40 years old in order to be covered by that law. While acknowledging that
when interpreting state discrimination statutes the courts often look to federal precedence for
guidance, no such guidance is required here. Although the express language of the federal law
specifically requires a claimant to be at least 40 years old, CFEPA has no such minimum
requirement per se. In addition, state discrimination law is generally considered broader than
federal law.
While the referee’s decision was in response to the company’s motion to dismiss, and has
not been subject to appeal, at least two federal judges have looked to federal law for guidance
and have held that CFEPA does not cover claims of age discrimination made by persons under
40. Guglietta v. Meredith Corp., 301 F. Supp. 2d 209 (D. Conn. 2004), and Rogers v. First
Union National Bank, 259 F. Supp. 200, 209 (D. Conn. 2003). The referee’s decision follows a
pattern of hearing officers ignoring court rulings on interpretive issues and damage awards.
With regard to the gender claim, the employee alleged he was fired because his company
was concerned about increased health care costs related to his wife’s pregnancy. Although the
referee recognized that traditional pregnancy based claims are normally made by women,
claimant’s sex was not a bar to bringing such a claim. The referee also cited a recent EEOC case
in which a male was permitted to file a complaint alleging he suffered pregnancy discrimination
when his wife became pregnant.
As evidenced by this case, employers must base any employment decision on a non-
discriminatory business reason, and be able to credibly articulate that reason if faced with a legal
challenge, even one that is unexpected.
On March 30, 2005 the U.S. Supreme Court held that employees could bring disparate
impact based suits under the Age Discrimination in Employment Act of 1967 (“ADEA”). Smith
v. City of Jackson, 2005 U.S. LEXIS 2931. Expanding the disparate impact theory to age cases
now permits a plaintiff to claim that a neutral employment practice that has a disproportionate
negative impact on older workers is unlawful, without having to prove discriminatory intent.
Prior to the Court’s ruling, the circuit courts had split on whether ADEA permitted disparate
impact claims even though the EEOC and Department of Labor had long held that it did.
Disparate impact theory was first recognized by the Court under the Civil Rights Act of
1964. Griggs v. Duke Power Co., 401 U.S. 424 (1971). While applying the theory to ADEA,
the Court also made clear that the Act permits differentiation based on reasonable factors other
than age (“RFOA”). Therefore, if an employer can show that the adverse impact is attributable
to a reasonable non-age factor it will escape liability.
For instance, in Smith the city granted larger wage increases to employees with less than
five years service to align starting salaries with market rates. Longer service employees who
tended to be older complained the policy discriminated against them. Because the city showed
its plan was based on reasonable factors other than age, it prevailed.
Although the Court has recognized a RFOA exception, employers should continue to
analyze the impact their policies have on protected groups and make sure all decisions are
justified by legitimate business needs.
impact based suits under the Age Discrimination in Employment Act of 1967 (“ADEA”). Smith
v. City of Jackson, 2005 U.S. LEXIS 2931. Expanding the disparate impact theory to age cases
now permits a plaintiff to claim that a neutral employment practice that has a disproportionate
negative impact on older workers is unlawful, without having to prove discriminatory intent.
Prior to the Court’s ruling, the circuit courts had split on whether ADEA permitted disparate
impact claims even though the EEOC and Department of Labor had long held that it did.
Disparate impact theory was first recognized by the Court under the Civil Rights Act of
1964. Griggs v. Duke Power Co., 401 U.S. 424 (1971). While applying the theory to ADEA,
the Court also made clear that the Act permits differentiation based on reasonable factors other
than age (“RFOA”). Therefore, if an employer can show that the adverse impact is attributable
to a reasonable non-age factor it will escape liability.
For instance, in Smith the city granted larger wage increases to employees with less than
five years service to align starting salaries with market rates. Longer service employees who
tended to be older complained the policy discriminated against them. Because the city showed
its plan was based on reasonable factors other than age, it prevailed.
Although the Court has recognized a RFOA exception, employers should continue to
analyze the impact their policies have on protected groups and make sure all decisions are
justified by legitimate business needs.
