8.1.5 Elements of an ADEA Claim — Retaliation Model [Plaintiff] claims that [defendant] discriminated against [him/her] because of [plaintiff’s] [describe protected activity]. To prevail on this claim, [plaintiff] must prove all of the following by a preponderance of the evidence: First: [Plaintiff] [describe activity protected by the ADEA]. Second: [Plaintiff] was subjected to a materially adverse action at the time, or after, the protected conduct took place. Third: There was a causal connection between [describe challenged activity] and [plaintiff’s] [describe plaintiff’s protected activity]. Concerning the first element, [plaintiff] need not prove the merits of [his/her] [describe plaintiff’s activity], but only that [he/she] was acting under a reasonable, good faith belief that [plaintiff’s] [or someone else’s] rights under the Age Discrimination in Employment Act were violated. Concerning the second element, the term “materially adverse” means that [plaintiff] must show [describe alleged retaliatory activity] was serious enough that it well might have discouraged a reasonable worker from [describe plaintiff’s protected activity]. [The activity need not be related to the workplace or to [plaintiff’s] employment.] Concerning the third element, that of causal connection, that connection may be shown in many ways. For example, you may or may not find that there is a sufficient connection through timing, that is [defendant’s] action followed shortly after [defendant] became aware of [plaintiff’s] [describe activity]. Causation is, however, not necessarily ruled out by a more extended passage of time. Causation may or may not be proven by antagonism shown toward [plaintiff] or a change in demeanor toward [plaintiff]. Ultimately, you must decide whether [plaintiff’s] [protected activity] had a determinative effect on [describe alleged retaliatory activity]. “Determinative effect” means that if not for [plaintiff's] [protected activity], [describe alleged retaliatory activity] would not have occurred. Comment The ADEA provides a cause of action for retaliation:
It is important to understand that, in determining whether a hostile work environment existed at the [employer’s workplace] you must consider the evidence from the perspective of a reasonable person of [plaintiff’s age] in the same position. That is, you must determine whether a reasonable person of [plaintiff’s age] would have been offended or harmed by the conduct in question. You must evaluate the total circumstances and determine whether the alleged harassing behavior could be objectively classified as the kind of behavior that would seriously affect the psychological or emotional well-being of a reasonable person of [plaintiff’s age]. The reasonable person of [plaintiff’s age] is simply one of normal sensitivity and emotional make-up. Comment This instruction can be used if the court wishes to provide a more detailed instruction on what constitutes a hostile work environment than those set forth in Instructions 8.1.3 and 8.1.4. This instruction is substantively identical to the definition of hostile work environment in Title VII cases. See Instruction 5.2.1.
reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages. 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.