NH Law May Give Age Discrimination Protection For Young

April 1, 2004

The United States Supreme Court recently issued a noteworthy decision interpreting the Age Discrimination in Employment Act of 1967 (“ADEA”). In the case of General Dynamics Land Systems, Inc. v. Cline, decided February 24, 2004, the Court determined that the ADEA does not protect against “reverse age discrimination.” The majority opinion was written by Justice David Souter formerly of the New Hampshire Supreme Court.


The ADEA forbids discriminatory preference for the young over the old. The law was enacted to prohibit and prevent employers from making decisions based on the inaccurate assumption that an older person is less productive and less valuable in the work place. The ADEA specifically prohibits an employer from making hiring, firing, compensation or benefits decisions on the basis of an employee’s age. Protection flows to all persons 40 or more years of age.

In order to establish a prima facie case under the ADEA an individual must demonstrate that (1) he or she falls within the protected age category of the statute; (2) he or she was qualified for the job or met the employer’s legitimate performance expectations; (3) he or she suffered an adverse employment action; and (4) the employer did not treat other employees younger than the aggrieved employee in a similar fashion.

The General Dynamics case involved a collective bargaining agreement between General Dynamics and the United Auto Workers Union which eliminated the company’s obligation to provide health benefits to subsequently retired employees, except as to then current workers at least 50 years old. The class of individuals who brought the lawsuit was at that time at least 40 years old and protected by the Act but under the age of 50 and therefore subject to losing their benefits.

The Court determined that the ADEA’s text, structure, purpose, history, and relationship to other federal statutes demonstrated that the statute was not intended to stop an employer from favoring an older employee over a younger one. The Court determined that the statute’s legislative history as well as its plain language demonstrated that the ADEA’s prohibition covers discrimination because of an individual’s age that helps the younger by hurting the older and not the opposite.

New Hampshire employers, however, must be keep in mind that New Hampshire law also protects employees from age discrimination under RSA 354-A:6 and 7. Unlike the ADEA, state law does not limit its protection to persons 40 or more years of age. The New Hampshire statute applies to all employees over the age of 18. Any New Hampshire employer with six or more employees is subject to RSA 354-A, and it is important for such employers to not rely on General Dynamics since it is entirely possible that the result of that case, if it had been brought in New Hampshire under RSA 354-A would have been entirely different.

Charla Bizios Stevens is a member of the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at 603-628-1363 or charla.stevens@mclane.com. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth.