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Flagrant Age Discrimination at Indiana University

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. anon says:

    From your description, it seems like he might have not only an age discrimination claim, but also a contract claim–if in fact he was assured that he would not be subject to the policy.

  2. Lawyer says:

    He should sue now under the ADEA and get an injunction, or at least as soon as his dismissal is imminent enough to make the case ripe. Under Kimel v. Florida Board of Regents, the school, because it’s an arm of the state, is immune from damages lawsuits under the ADEA. I also suspect that the balance of equities would point away from an injunction once a new dean is appointed, or maybe when a search beings.

  3. Landon Alger says:

    There are lots of lawyers floating around here, and both you and your boss have passed the bar. There are quite a few actionable issues here — those assurances could be bad news for the University if this is litigated.

  4. Paul Secunda says:

    As a labor and employment law professor, I see the obvious ADEA issues here (at least since mandatory retirements in academia went the way of the dinosaur in 1993), but I think Gerard and the commentators are missing the more interesting question: you can’t force someone to mandatorily retire because of age, but can you force them to give up an administrative title and drop back to the regular faculty?

    I am not initially thinking here about ADEA law, but the law of procedural due process and the idea that although public university professor generally have a property interest in their jobs, they do not have one in their administrative appointments, such as being Dean.

    On the other hand, I believe being demoted from dean to the regular faculty because of age can be seen as an adverse employment decision regardless of whether there is a constitutionally protectible interest involved. As such, if the sole reason is age that he was demoted, the University would have to make a showing that being 65 or younger is a bona fide occupational qualification (bfoq) for being Dean. I can see the argument for airline pilots perhaps (see Thurston v. TWA), but law school deans?

  5. Scott Moss says:

    There’s an ADEA exception that likely (but not certainly) disposes of any ADEA claim: “29 C.F.R. § 1625.12 Exemption for bona fide executive or high policymaking employees.” It basically says what it sounds like, but (a) it narrowly construes who’s “high” enough an exec, and if the Dean is construed as middle-management of the university, rather than as top mgmt of the law school, he may not qualify. Also, for this exception to apply, the school has to give him the severance package detailed in the reg. I’d hope IU knows of these rules, but as Joaquin Andujar said, youneverknow.

    I do agree wholeheartedly that employers, espeically ones running a major public institution, should aspire to be nondiscriminatory, not to discriminate as much as obscure regulations allow. This retirement policy, and especially its sudden enforcement, stinks.

  6. Paul Secunda says:

    I stand corrected. It is likely that a bona fide executive or high policymaker exception would apply here under the ADEA (29 USC 631):

    (c) Bona fide executives or high policymakers

    (1) Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000.

    (2) In applying the retirement benefit test of paragraph (1) of this subsection, if any such retirement benefit is in a form other than a straight life annuity (with no ancillary benefits), or if employees contribute to any such plan or make rollover contributions, such benefit shall be adjusted in accordance with regulations prescribed by the Equal Employment Opportunity Commission, after consultation with the Secretary of the Treasury, so that the benefit is the equivalent of a straight life annuity (with no ancillary benefits) under a plan to which employees do not contribute and under which no rollover contributions are made.

    Moreover, one case has held that, “Under the ADEA’s bona fide executive exception, employer is not required to completely retire employee, but, rather, employers can take a less adverse action by demoting or transferring bona fide executives.”

  7. AF says:

    If the dean was in fact assured that the age limit would not be enforced against him, he may have a promissory estoppel claim.

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