Any time a charter school terminates an employee who is 40 years old or older, it must consider the Age Discrimination in Employment Act (ADEA), which prohibits discrimination on the basis of age. The simple rule of the ADEA: Employers cannot discriminate against older workers on the basis of age.
Earlier this month, the Supreme Court decided Babb v. Wilkie, a case arising under the ADEA. The court held that an employee states a claim under the federal provision of the ADEA merely by alleging that age was a factor in the employment decision. The court rejected the government’s argument that to state a claim the employee must allege that age was the determining factor in the employment decision (so-called “but for” causation).
The good news for charter schools is that this decision has little or no effect on them. Babb v. Wilkie was decided under the federal provision of the ADEA, which imposes a stricter standard on federal employers. Charter schools fall under a different provision of the statute which requires the employee to demonstrate “but for” causation. In other words, for charter schools, the law remains that the employee must allege more than that age was one factor in the employment decision. He must allege that it was the determining factor.