Washington Law Review


Congress passed the Age Discrimination in Employment Act (ADEA) to prohibit discrimination against older workers. The legislative history of the ADEA shows that Congress recognized that this discrimination most commonly stemmed from inaccurate stereotypes about the older worker. A review of ADEA cases decided between 1984 and 1995 demonstrates the frequent incidence of cases in which older workers allegedly were fired or not hired because of the higher salaries typically earned by these relatively experienced workers. This review also reveals that, applying an unduly mechanical version of the McDonnell Douglas/Burdine test, courts did not effectively identify (1) employment actions purportedly based on salary where salary served as a pretext for age animus and (2) actions in fact based on salary but infected with illegal age stereotyping. This Comment proposes adapting the McDonnell Douglas/Burdine test to more accurately evaluate these cases.

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