ADEA Settlement: 3M Puts the 3M in 3M

 By: Zachary Rothken

3M has agreed to pay $3 Million to a large class of former employees to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).[1] 3M is a $27 billion global technology company and a component of the Dow Jones Industrial Average.[2]  In the lawsuit, the EEOC claimed that 3M fired hundreds of qualified employees over the age of 45 to make way for younger employees.[3]  The agency also claimed that the older employees were denied leadership training.[4]  According to the agency, then-CEO (and current CEO of Boeing) Jim McNerney’s “vision for leadership potential” was described as a focus on “developing 30 year olds with General Manager potential” and “[tapping] into the youth as participants in the leadership development.”[5]

Despite the settlement, 3M issued a statement denying any liability, saying “3M’s human resources practices are fair, comply with federal and state laws, and are widely recognized as ‘best in class.’”[6]  The charges stem from a state discrimination suit first filed in Minnesota in 2004.[7]  The state suit also culminated in a settlement, with 3M agreeing to pay a class of 7,000 members $12 million to settle.[8]As the baby boomer generation gets older, and its participation in the labor force stays solid, more age discrimination issues are bound to arise.[9]  The number of workers aged 55 years and older is expected to grow by 43% over a ten-year period from 2008 to 2018.[10]Since 2009, however, it has become increasingly more difficult for employees to prevail on age discrimination claims.  The Age Discrimination in Employment Act of 1967 (ADEA) prohibits discrimination against an individual with respect to his employment “because of” his age.[11]  The Act applies to individuals 40 years of age and older.[12]  In Gross v. Fin. Servs., Inc., the United States Supreme Court held that to prevail on an ADEA claim, an employee must prove that age was the “but-for” cause of the employer’s adverse decision.[13]  This precludes “mixed-motive” age discrimination claims.[14]In response to Gross, Congress introduced a bill, the Protecting Older Workers Against Discrimination Act (POWADA) to overturn the Supreme Court’s ruling.[15]  The bill stated that the congressional intent in enacting the ADEA was that it would be interpreted consistently with judicial interpretations of Title VII of the Civil Rights Act of 1964.[16]  Title VII is regularly interpreted as allowing for “mixed-motive” discrimination cases.[17]  Nevertheless, the bill failed to become law.[18]

3M’s recent settlement is one of a handful of recent cases involving age discrimination claims.  In 2010, Kmart settled an age discrimination suit, also filed by the EEOC, agreeing to pay $120,000 to a 70-year-old pharmacist at a Honolulu, Hawaii, store.[19]  Red Rock Western Jeep Tours, Inc. also settled an age discrimination sued filed by the EEOC, agreeing to pay $35,000 to a 75-year-old reservationist in Phoenix, Arizona.[20]

If not for the Supreme Court’s landmark ruling in Gross, age discrimination suits would undoubtedly be a more frequent occurrence.  Gross provides a fair and sensible approach to deal with what could potentially ensue from a clash of aging baby boomers, a weak economy and an increasingly litigious society.

[1] Press Release, U.S. Equal Employment Opportunity Commission, 3M to Pay $3 Million to Settle EEOC Age Discrimination Suit (Aug. 22, 2011), available at  (hereinafter “3M EEOC Press Release”).

[2] Company Information, (last visited Aug. 25, 2011).

[3] 3M EEOC Press Release, supra, note 1.

[4] Id.

[5] Id.

[6] Joan E. Solsman, UPDATE: 3M Agrees to Resolve Age-Bias Suit for $3M, Wall St. J. (Aug. 22, 2011, 6:45 PM),

[7] Id.

[8] Beth Hawkins, 3M Agrees to Pay $12 Million to Settle Discrimination Suit, Bloomberg (Mar. 18, 2011, 1:45 PM),

[9] See Ann Marie Tracey, Still Crazy After All These Years? The ADEA, the Roberts Court, and Reclaiming Age Discrimination As Differential Treatment, 46 Am. Bus. L.J. 607, 661 n.9 (2009).

[10] News Release, U.S. Dep’t of Labor Bureau of Labor Statistics, Employment Projections — 2008-18 (Dec. 11, 2009), ; see also Mitra Toossi, Labor Force Projections to 2018: Older Workers Staying More Active, Monthly Lab. Rev., Nov. 2009, at 31,

[11] Prohibition of Age Discrimination, 29 U.S.C.A. § 623 (a) (1).

[12] Age Limits, 29 U.S.C.A. § 631 (a).

[13] Gross v. Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009).

[14] Id.

[15] Protecting Older Workers Against Discrimination Act, S. 1756, 111th Cong. (2009).

[16] Id. § 2 (a) (3).

[17] See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

[18] See Jacqueline Go, Another Move Away from Title VII: Why Gross Got It Right, 51 Santa Clara L. Rev. 1025, 1053 n.18 (2011).

[19] Press Release, U.S. Equal Employment Opportunity Commission, Kmart to Pay $120,000 to Settle EEOC Age Bias Suit (Mar. 24, 2010),

[20] Press Release, U.S. Equal Employment Opportunity Commission, Red Rock Western Jeep Tours Settles Age Discrimination Case (Mar. 23, 2010),

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