Reduction in Force On the standards for proving age discrimination in reduction in force cases, see, e.g., Tomasso v. Boeing Co., 445 F.3d 702, 706 n.4 (3d Cir. 2006): Ordinarily, to make out a prima facie case [of age discrimination] the plaintiff must show . . . that he was replaced by a sufficiently younger person to create an inference of age discrimination. Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002). However, where an employee is terminated during a RIF, the [disputed question] becomes whether the employer retained employees who do not belong to the protected class. See also Dreyer v. ARCO Chemical Co., 801 F.2d 651, 653 (3d Cir. 1986) (noting that in reduction of force cases “it is often impracticable to require a plaintiff whose job has been eliminated to show replacement” and so the question becomes whether the plaintiff was laid off from a job for which he was qualified while substantially younger employees were treated more favorably), overruled on other grounds by Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993); Anderson v. CONRAIL, 297 F.3d 242 (3d Cir. 2002) (in a reduction in force case, the plaintiff must show that a similarly situated substantially younger employee was retained).
goal and that there is no acceptable alternative which would better advance it or equally advance it with less discriminatory impact. The Criswell Court made it clear that the BFOQ defense is an affirmative defense; the burden of establishing its elements is on the defendant.
8.4.5 ADEA Damages — Nominal Damages Model If you return a verdict for [plaintiff], but [plaintiff] has failed to prove actual injury and therefore is not entitled to damages, then you must award nominal damages of $ 1.00. A person whose federal rights were violated is entitled to a recognition of that violation, even if [he] suffered no compensable injury. Nominal damages (of $1.00) are designed to acknowledge the deprivation of a federal right, even where no compensable injury occurred. However, if you find compensable injury, you must award damages for lost wages or benefits (as I instructed you), rather than nominal damages. Comment There is no Third Circuit case law on the availability of nominal damages in an ADEA case. But it appears that an award of nominal damages in an ADEA action might be justified in an extraordinary case, and so a pattern instruction is provided. The Eighth Circuit Committee Comment on a nominal damage instruction in an ADEA case opines that “[n]ominal damages normally are not appropriate in ADEA cases” and explains as follows: Recoverable damages in ADEA cases normally are limited to lost wages and benefits and in most ADEA cases, it will be undisputed that the plaintiff has some actual damages. Although case law does not clearly authorize this remedy in age discrimination cases, a nominal damage instruction may be considered in appropriate cases, and Model Instruction 5.02B, supra, should be used. Most cases that allow nominal damages just assume they are permissible without much discussion of the issue. See e.g., Drez v. E.R. Squibb & Sons, Inc., 674 F. Supp. 1432, 1438 (D. Kan. 1987) (ADEA); Graefenhain v. Pabst Brewing Co., 670 F. Supp. 1415, 1416 (E.D. Wis. 1987) (ADEA).