How old is too old?

Volume 113, No. 2February, 2013

Harvey Mars, Esq.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived at (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.

How old is too old? And what protections does the law offer musicians who feel they’ve been discriminated against because of age? Here’s a story that illustrates some of the ins and outs of the law.

Several years ago, the Equal Employment Opportunity Commission sued the American Ballet Theatre in district court.

The suit was based upon an age discrimination claim filed by a Local 802 member. He was a 74-year-old non-tenured trumpet player who had been abruptly terminated by ABT in 2005 and then replaced by a younger musician.

The law that deals with age discrimination is called the Age Discrimination Employment Act (ADEA). It forbids employment discrimination against anyone at least 40 years of age. The bill was signed into law in 1967 by President Lyndon Johnson.

Now if you feel you’ve been subject to age discrimination, you can certainly sue your employer, but there is also a federal agency that, among other things, acts as an advocate for citizens. It’s hard to get this agency interested in your case, but if they are, then you’ve got the resources of the entire U.S. government behind you. I’m talking about the EEOC.

The EEOC’s mission is to prevent employment discrimination based on factors such as age, sex or race. When workers feel they have been discriminated against, they file a complaint with the agency.

But the vast majority of discrimination complaints are found to be without merit as soon as the EEOC completes its investigation. These claims are deemed to be lacking probable cause that a violation of the anti-discrimination law has occurred.

Claimants may pursue the claim further. However, they only have 90 days to initiate a lawsuit on their own behalf in federal court – and most do so at considerable personal expense. Failure to commence suit within that time frame will result in the forfeiture of the claim.

On the other hand, when the EEOC finds that there actually is evidence supporting the existence of a statutory violation, the claimant receives a “probable cause” determination. If the claim is not voluntarily resolved, the claimant is still required to initiate suit within 90 days. The probable cause determination, however, gives the litigant a considerable tactical advantage.

Of the very small percentage of claims found having probable cause by the EEOC, an even smaller percentage are actually pursued by the EEOC through suit If the EEOC decides to initiate suit, the claimant enjoys the dual benefits of free legal representation and the formidable resources of the federal government.

Most often, the EEOC will pursue claims it believes have significant public interest, since part of the EEOC’s Congressional mandate is to educate and increase public awareness of the application of civil rights laws.

For this reason, when the EEOC initiates litigation, it seeks public exposure of the suit and details the nature of the suit in press releases issued to the media.

Unfortunately, in a 2009 decision, the Supreme Court determined the ADEA only prohibits age discrimination if it is the sole cause of the adverse employment action. Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343.

Thus to succeed on an age discrimination claim under the ADEA, you must now be able to prove that age was the “but for” cause of the employment decision, i.e. but for the person’s age, she would have been promoted. Thus, the scope of the law has been significantly reduced. Mixed motive cases – those that demonstrate that the employer based its decision on age-related factors as well as permissible factors such as ability and qualifications – are no longer actionable through the ADEA.

There may be legislative action on the horizon, like there was to remedy the U.S. Supreme Court’s limitation on the scope of the Equal Pay Act. The enactment of remedial legislation seems more likely now that President Obama has been re-elected.


Fighting age discrimination under federal law is tough. But for our musicians who live in New York or New Jersey, there’s another route to go. You can file an age discrimination complaint with a state or city agency: the New York State Division of Human Rights, the New York City Commission on Human Rights or the New Jersey Division of Civil Rights. These agencies investigate and prosecute claims of employment discrimination in a similar fashion as the EEOC but they administer state law rather than federal law.

I have some experience with the state agencies. If they find that there is sufficient evidence of discrimination, they will prosecute the claim before an administrative law judge.

The good news is that state law does allow “mixed motive” cases. This means that if you were fired for age and for something else, state law allows you to pursue your claim, even if federal law does not.

Finally, remember that you can always hire a private attorney and take matters into your own hands.


Now let’s return to the case of the 74-year-old Local 802 member who was fired by the American Ballet Theatre.

It’s remarkable that the EEOC itself chose to pursue this claim. Remember, that’s very rare!

However, the case never made it to court.

With the consent of all parties – including the claimant – the dispute was submitted by the court to early mediation. Both parties ultimately came to a settlement.

The American Ballet Theatre did not admit any wrongdoing, but they paid a modest back pay award for the claimant, who did not seek reinstatement of his job.


So what should you do if you feel you’ve got an age discrimination complaint?

  • You can first try calling Local 802 at (212) 245-4802. Ask for the Organizing Department. Age discrimination cases are not slam dunks by any means, but at least the union can document your situation.

  • Contact one of the city or state agencies. Here’s a shortcut link for you with all of the contact info:

  • Contact the EEOC at (800) 669-4000 or and file a claim.

  • Hire a private attorney.

Click here for stories by Local 802 members about their own experiences with age discrimination.

This article is from the February 2013 issue of Allegro, the magazine of the New York City musicians’ union (AFM Local 802). See for more background, or e-mail