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Age discrimination and wage theft remain persistent problems for older adults in workplaces across the country. Circuit splits are emerging over how employees claiming either age discrimination under the Age Discrimination in Employment Act (ADEA) or wage and hour violations under the Fair Labor Standards Act (FLSA) can effectively sue their employers.
Age Discrimination and Evidence of Workplace Culture
Courts are currently split on when age-based comments from decision-makers and nondecision-makers can be seen as circumstantial evidence of an age-based employment decision or whether they are simply “stray remarks.” Ordinarily, comments made by nondecision-maker supervisors and other employees who did not make the challenged employment decision are considered stray remarks. But some circuits have concluded that the totality of these comments by decision-makers and nondecision-makers can reveal a workplace culture of hostility toward older workers, which can be powerful evidence that age was a factor in employment decisions made in that workplace.
In Ercegovich v. Goodyear Tire & Rubber Co., the Sixth Circuit explained discriminatory statements that show “corporate state-of-mind or a discriminatory atmosphere” may support a finding that an employment decision was based on age. 154 F.3d 344, 356 (6th Cir. 1998). The Sixth Circuit recently reaffirmed this view. In Kean v. Brinker International, Inc., the court concluded evidence that the defendant was “cultivating a youthful ‘culture,’” which included testimony that nondecision-maker employees referred to the plaintiff as “Old Man,” “Pops,” and “Grandpa,” and called his management style “old-school,” showed that the defendant’s claimed business reason for firing the plaintiff was pretext for age discrimination. 2025 WL 1692713, at *13 (6th Cir. June 17, 2025).
The Seventh Circuit has taken a similar approach, concluding that executives’ statements expressing their desire to get rid of older employees could be evidence of a discriminatory workplace culture that influenced decision-makers’ employment policies and practices. Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 770 (7th Cir. 2006). District courts in the Second and Ninth Circuits have expressed similar views. See, e.g., Van Brunt-Piehler v. Absolute Software, Inc., 504 F. Supp. 3d 175, 188-89 (W.D.N.Y. 2020) (concluding that age-based comments within context of discriminatory culture were evidence of age discrimination); Munoz v. Nat’l R.R. Passenger Corp., 2016 WL 11744436, at *1 (C.D. Cal. Nov. 23, 2016) (allowing jury to consider evidence of age-discriminatory corporate culture where employer made decision to fire plaintiff).
Other circuits are less willing to consider evidence that a discriminatory workplace culture influenced the decision-making process. In 2020, the Fifth Circuit affirmed a district court decision concluding that evidence of a workplace culture “permeated with ageism” added “minimal, if any, support” to a plaintiff’s claim that he was fired because of his age. Sabatelli v. Baylor Scott & White Health, 2017 WL 9325617, at *4 n.2 (W.D. Tex. Oct. 4, 2017), aff’d, 832 F. App’x 843 (5th Cir. 2020). Although not explicitly considering evidence of workplace culture, the Tenth Circuit also has concluded that ageist comments made by executives that did not make the decision to fire a former employee were not evidence of age discrimination. Cone v. Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (Executive’s remarks that hospital “need[s] some new young blood” and “long-term employees have a diminishing return” were “stray remarks … insufficient to create a jury issue in an ADEA case.”).
A case currently pending in the Third Circuit may present an opportunity for the Supreme Court to address this divide. In Gallagher v. Cent. Valley School District, a 52-year-old substitute teacher alleged that a Pennsylvania school district failed to consider her for a permanent position because of her age in violation of the ADEA. 2024 WL 3969669, at *1 (W.D. Pa. Aug. 28, 2024). The district court characterized several age-based comments by school district officials as “stray remarks” because they were made outside of the context of the decision-making process. Id. at *4-*5. The court then concluded that the plaintiff had not proven age discrimination. Id. The plaintiff appealed to the Third Circuit. AARP and AARP Foundation joined several other organizations in an amicus brief arguing that nondecision-maker supervisors’ age-based comments can show that age was a factor in an employment decision because they are evidence of a discriminatory workplace culture that often shapes the attitudes of supervisors and employees. If the Third Circuit sides with the school district, future ADEA plaintiffs in the circuit may have to rely on a more limited evidentiary toolbox, making it harder to prove their claims.
Given the circuit split, the Supreme Court may consider whether plaintiffs can use evidence of a discriminatory workplace culture to show the employer’s legitimate business reason for an adverse employment decision was merely pretext for age discrimination. The outcome in Gallagher—if it departs from the Sixth and Seventh Circuits—could further clarify the circuit split increasing the likelihood of Supreme Court review.
Collective Certification Standards under the ADEA and the FLSA
Another emerging circuit split deals with how hard it should be for older adults experiencing ADEA or FLSA violations to join together to sue their employer. Employees save time, energy, and money when they sue their employer together for the same conduct instead of filing separate lawsuits. But both statutes do not permit class actions. Instead, they allow similarly situated employees who have suffered age discrimination or wage and hour violations to sue their employer through a “collective action.” 29 U.S.C. §§ 216, 626. Following “conditional certification” in a collective action, employees wanting to join an existing case against an employer can “opt in” by informing plaintiff’s counsel and the judge that they want to be added as collective members. This differs from a class action where, typically, anyone included in the plaintiff’s class definition is automatically considered a member of the class unless he or she “opts out.”
Collective actions are critical in fighting back against ageist or illegal labor practices that would be cost prohibitive for a single employee to pursue but impacting many employees. For a case to be considered a collective action, employees must be similarly situated enough that their claims can be dealt with as a collective rather than on an individual basis. For over 35 years, most collective actions have been evaluated under a two-step approach. First, the court decides whether to approve sending notice to all affected employees to give them a chance to opt into a collective case. This stage is referred to as “conditional certification” and it is completed before discovery takes place. Because plaintiffs do not yet have all the evidence available to them at the outset of a case, the standard to conditionally certify a collective action is purposely low. Upon conclusion of discovery and following a defendant’s motion to decertify a collective action, the court then decides whether the case should proceed as a collective action by all the plaintiffs. The liberal standard for conditional certification of a collective action does not apply at this second stage of the court’s approach.
In recent years, some circuit courts have moved towards a more employer-friendly standard. In Swales v. KLLM Transport Services, LLC, the Fifth Circuit held that a court should not allow for any notice to be sent to employees until it has found that employees are similarly situated to form a collective, a much higher standard than courts have traditionally used for conditional certification. 985 F.3d 430 (5th Cir. 2021). It explained that “the similarity requirement is something that district courts should rigorously enforce at the outset of the litigation.” Id. at 443. The Sixth Circuit also adopted a high standard, requiring plaintiffs to show a “strong likelihood” that employees to whom notice is to be sent are similarly situated to themselves. Clark v. A&L Homecare and Training Center, LLC, 68 F.4th 1003, 1011 (6th Cir. 2023). It compared the conditional certification of a collective to a preliminary injunction where a strong likelihood of success is required short of a preponderance of the evidence. Id. Both courts allowed for the possibility that some discovery and additional proceedings—all of which can delay a case from moving forward—might take place promptly before the court makes a final determination.
Apparently spurred by the Fifth and Sixth Circuits, the Seventh and Ninth Circuits recently heard oral arguments in respective cases challenging the traditional two-step collective certification approach in ADEA and FLSA cases. The Ninth Circuit upheld the two-step approach. Harrington v. Cracker Barrel Old Cnty. Store Inc., No. 24-2574 (9th Cir. July 1, 2025). But the Seventh Circuit adopted a fourth and different standard for notice in collective actions. Richards v. Eli Lilly & Co., No. 24-2574 (7th Cir. August 5, 2025). While AARP and AARP Foundation filed an amicus brief in Richards, urging the Seventh Circuit to preserve the two-step approach for collective certification, the court instead took a middle ground—rejecting the Fifth and Sixth Circuits’ more onerous standards, but requiring more than the lenient standard adopted by most other circuits. The Seventh Circuit held that, before any notice may issue in a case, the plaintiffs must present evidence raising a material factual dispute as to whether the proposed collective is similarly situated. While both parties’ evidence must be considered, the court retains discretion to manage the process, including authorizing limited discovery or narrowing the scope of notice.
The two-step approach—conditional certification of a collective action followed by a motion to decertify after completion of discovery—remains an effective way to conduct collective action cases under the ADEA and the FLSA. It makes it relatively simple for those who have suffered age discrimination or wage and hour violations to have their day in court and to resolve claims that may affect large numbers of employees in a single proceeding. It encourages active and early judicial management of cases which was endorsed by the Supreme Court in Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989). It also ensures in all collective actions that the proceedings are fair, cases move forward efficiently, and an employer ultimately has the right to challenge the existence of the collective before any facts are decided. These advantages have given this two-step process broad appeal. See Campbell v. City of Los Angeles, 903 F.3d 1090 (9th Cir. 2018); Halle v. W. Penn Allegheny Health Sys. Inc., 842 F.3d 215 (3d Cir. 2016); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095 (10th Cir. 2001); Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001) (all endorsing the two-step approach to collective certification).
In contrast, the approach adopted by the Fifth and Sixth Circuits would render more difficult the pursuit of collective actions by employees alleging similar conduct by an employer harming a group of employees because plaintiffs do not have the information necessary to prove that all employees are similarly situated at the outset of litigation. The standard would essentially require plaintiffs bringing an ADEA or FLSA collective action to present evidence that they performed the same task and were subject to the same policies prior to completion of discovery. The Seventh Circuit’s approach appears to place the two-step approach on firmer ground, holding plaintiffs to a higher standard than before, but anchoring it more firmly in longstanding Supreme Court precedent.
AARP Foundation relies on the collective action mechanism to fight for older workers who have experienced age discrimination or wage and hour violations. The outcome of this circuit split will affect these efforts.
Jurisdictional Requirements for Collective Actions under the ADEA and the FLSA
Another circuit split involving a different aspect of collective actions alleging age discrimination or unlawful labor practices that may end up at the Supreme Court deals with when courts can hear a collective action against an out-of-state employer. Circuit courts disagree on whether out-of-state employees can join a collective action when the court does not have general jurisdiction over the employer. Federal courts have general jurisdiction over a defendant when its contacts with the court’s jurisdiction are sufficient. For example, the Southern District of Iowa has general jurisdiction over businesses based out of Des Moines, Iowa. But after a 2017 Supreme Court ruling in Bristol-Meyers Squibb Co. v. Superior Ct. of California, 582 U.S. 255 (2017), it probably would not have jurisdiction over a nationwide class action brought by older workers against a company outside Iowa, even by a plaintiff in Des Moines.
Whether this is also true for collective actions varies depending on the circuit. Four circuits have expanded the scope of the decision in Bristol-Myers Squibb. Canaday v. Anthem Cos., Inc., 9 F.4th 392, 397 (6th Cir. 2021); Vallone v. CJS Sols. Grp., LLC, 9 F.4th 861, 865-66 (8th Cir. 2021); Fischer v. Fed. Express Corp., 42 F.4th 366, 374 (3d Cir. 2022), cert. denied, 143 S. Ct. 1001 (2023); Vanegas v. Signet Builders, Inc., 113 F.4th 718, 723-25 (7th Cir. 2024). In doing so, these courts protect multi-state employers from facing nationwide collective actions for federal wage and hour, equal pay, or age discrimination claims unless the suit is brought in the state in which the employer is headquartered or incorporated. These outcomes limit who can be a plaintiff in a collective action and where plaintiffs can file their collective action lawsuits, lowering potential liability for employers who violate older workers’ rights.
By contrast, the First Circuit reached the opposite conclusion, making a four-to-one circuit split. Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 92 (1st Cir. 2022). The Ninth Circuit recently released a decision joining the majority of other circuits on this issue, holding that Bristol-Myers Squibb extends to collective actions. Harrington v. Cracker Barrel Old Country Store, Inc., 2025 WL 1803034, at *4-*6 (9th Cir. July 1, 2025).
- David Yellin, DYellin@aarp.org
- Sam Wehrle, SWehrle@aarp.org
- Victoria Williamson, VWilliamson@aarp.org
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