FLORIDA EMPLOYMENT LAW: “REVERSE” AGE DISCRIMINATION IS NOT PROHIBITED UNDER FLORIDA OR FEDERAL LAW

While courts may allow employees to bring claims of “reverse discrimination” concerning sex, race, or religion, an employee may not bring a claim of “reverse” age discrimination under current interpretations of the Federal Age Discrimination in Employment Act (“ADEA”) or the Florida Civil Rights Act (“FCRA”). The different way that age is treated when contrasted against other protected classes is not directly found in the ADEA or the FCRA, but rather in the cases interpreting these anti-discrimination statutes. Peter Mavrick is Fort Lauderdale employment lawyer who has extensive experience in defending businesses and business owners against claims of discrimination.

The term “reverse discrimination” refers to a circumstance where a member of a class of persons who have historically not been discriminated against claims to have suffered discrimination because of his or her membership in that class. Examples of reverse discrimination would include a Caucasian person claiming racial discrimination, a Christian claiming religious discrimination, or a man claiming sex discrimination. Generally, Federal and Florida courts allow claims of reverse discrimination in most contexts. See, for example, McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (“Title VII of the Civil Rights Act of 1964 prohibits the discharge of “any individual” because of “such individual’s race,” 42 U.S.C. s 2000e-2(a)(1) (statutory terms are not limited to discrimination against members of any particular race); Wilson v. Bailey, 934 F.2d 301 (11th Cir. 1991) (circumstance where white male police officers sued claiming that department diversity policies illegally discriminated against them). This symmetry is not so for claims of age discrimination. The relatively young may not lawfully claim that an employer has discriminated against them in favor of the relatively old under current interpretations of the ADEA or FCRA.

By statutory wording, both the ADEA and FCRA appear to limit discrimination on the basis of age, regardless of whether the claimant is relatively old or relatively young. The ADEA states that:

It shall be unlawful for an employer—

• to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
• to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
• to reduce the wage rate of any employee in order to comply with this chapter.

29 U.S.C.A. § 623 (a)(1-3). The FCRA provides that:

(1) It is an unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

(b) To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual’s status as an employee, because of such individual’s race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

§ 760.10, Fla. Stat.

Neither the ADEA or FCRA states anything about age discrimination being limited to protecting the relatively old from being discriminated against in favor of the relatively young. However, Florida and federal courts have restricted the reach of the ADEA and FCRA to protect only those employees who are relatively older. The seminal United States Supreme Court case, Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581 (2004), stated in pertinent part regarding the federal age discrimination law that: “the ADEA was concerned to protect a relatively old worker from discrimination that works to the advantage of the relatively young.” The United States Supreme Court rationalized the disparate way that age was treated in comparison to the other protected classes by noting that “age” can be used to both refer to how old an individual is as well as the relative oldness of an individual, e.g. “home for the aged.” In this precedent, the Supreme Court decided that there can be no “reverse age discrimination” under the ADEA.

Florida courts have interpreted the FCRA by following the Supreme Court’s interpretation of the ADEA. Citing to the Supreme Court, Florida’s Fourth District Court of Appeal held that “Federal case law interpreting Title VII and the ADEA applies to cases arising under the FCRA,” and so, “[a]ge discrimination statutes protect only employment decisions which disadvantage an older worker in favor of a younger worker.” City of Hollywood v. Hogan, 986 So. 2d 634 (Fla. 4th DCA 2008). City of Hollywood has been consistently cited to block claims of “reverse” age discrimination. E.g. Petrik v. City of Pembroke Pines, 120 So. 3d 102 (Fla. 4th DCA 2013); Walker v. City of Pembroke Pines, 134 So. 3d 1051 (Fla. 4th DCA 2013). In Miami-Dade County v. Eghbal, 54 So. 3d 525 (Fla. 3d DCA 2011), Florida’s Third District Court of Appeal reached the same conclusion. The appellate court in Eghbal decided that the ADEA’s express statutory requirement that the claimant be at least 40 years old shall apply to the FCRA, even though the FCRA contains no such express statutory requirement concerning whether the claimant is at least 40 years old:

To establish a prima facie case of age discrimination, [plaintiff] had to prove that: (1) he was a member of a protected class, i.e., at least forty years of age; (2) he was otherwise qualified for the positions sought; (3) he was rejected for the position; and (4) the position was filled by a worker who was substantially younger than the plaintiff.Miami-Dade County v. Eghbal, 54 So. 3d 525 (Fla. 3d DCA 2011); see also Usher v. Nipro Diabetes Systems, Inc., 184 So. 3d 1260 (Fla. 4th DCA 2016) (stating that a plaintiff must be over the age of forty to state a claim of age discrimination).

Peter Mavrick is an experienced Fort Lauderdale employment attorney who represents businesses. This article does not serve as a substitute for legal advice tailored to a particular situation.