Instructions For Claims Under the Age Discrimination In Employment Act Numbering of ADEA Instructions 8.0 ADEA Introductory Instruction 8.1 Elements of an ADEA Claim 8.1.1 Disparate Treatment 8.1.2 Harassment — Hostile Work Environment — Tangible Employment Action 8.1.3 Harassment — Hostile Work Environment — No Tangible Employment Action 8.1.4 Disparate Impact 8.1.5 Retaliation 8.2 ADEA Definitions 8.2.1 Hostile or Abusive Work Environment 8.2.2 Constructive Discharge 8.3 ADEA Defenses 8.3.1 Bona Fide Occupational Qualification 8.3.2 Bona Fide Seniority System 8.3.3 Waiver 8.4 ADEA Damages 8.4.1 General Compensatory Damages 8.4.2 Back Pay 8.4.3 Liquidated Damages 8.4.4 Front Pay 8.4.5 Nominal Damages
Attorney Fees and Costs There appears to be no uniform practice regarding the use of an instruction that warns the jury against speculation on attorney fees and costs. In Collins v. Alco Parking Corp., 448 F.3d 652 (3d Cir. 2006), the district court gave the following instruction: “You are instructed that if plaintiff wins on his claim, he may be entitled to an award of attorney fees and costs over and above what you award as damages. It is my duty to decide whether to award attorney fees and costs, and if so, how much. Therefore, attorney fees and costs should play no part in your calculation of any damages.” Id. at 656-57. The Court of Appeals held that the plaintiff had not properly objected to the instruction, and, reviewing for plain error, found none: “We need not and do not decide now whether a district court commits error by informing a jury about the availability of attorney fees in an ADEA case. Assuming arguendo that an error occurred, such error is not plain, for two reasons.” Id. at 657. First, “it is not ‘obvious’ or ‘plain’ that an instruction directing the jury not to consider attorney fees” is irrelevant or prejudicial; “it is at least arguable that a jury tasked with computing damages might, absent information that the Court has discretion to award attorney fees at a later stage, seek to compensate a sympathetic plaintiff for the expense of litigation.” Id. Second, it is implausible “that the jury, in order to eliminate the chance that Collins might be awarded attorney fees, took the disproportionate step of returning a verdict against him even though it believed he was the victim of age discrimination, notwithstanding the District Court's clear instructions to the contrary.” Id.; see also id. at 658 (distinguishing Fisher v. City of Memphis, 234 F.3d 312, 319 (6th Cir. 2000), and Brooks v. Cook, 938 F.2d 1048, 1051 (9th Cir. 1991)).
We therefore reaffirm that the Thurston definition of "willful" -- that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute -- applies to all disparate treatment cases under the ADEA. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. 507 U.S. at 616. Accordingly, the instruction does not include any requirement that the defendant’s conduct must have been outrageous. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1099, n.2 (3d Cir. 1995) (noting that the Third Circuit’s “outrageousness” requirement in Dreyer had been effectively overruled by Hazen). The amount of damages to be doubled under the ADEA liquidated damages provision does not include front pay. Blum v. Witco Chem. Corp., 829 F.2d 367, 373 (3d Cir. 1987) (noting that a front pay award “is the monetary equivalent of the equitable remedy of reinstatement” and therefore is not part of the “wages” that are to be doubled under the terms of the statute). Liquidated damages are of course not available in disparate impact cases, as liquidated damages are premised on a knowing or reckless disregard of the law. In contrast, disparate impact liability is not dependent on a knowing or intentional violation. In Potence v. Hazleton Area School District, 357 F.3d 366 (3d Cir. 2004), the court held that the ADEA authorizes the imposition of liquidated damages against government employers who engage in willful age discrimination.