With some exceptions, the ADEA applies to the U.S.-incorporated subsidiaries of foreign corporations. It remains unsettled whether employees can sue foreign parent companies of U.S. subsidiaries for age discrimination under the ADEA. Recently, in Downey v. Adloox Inc., Case No. 16-CV-1689 (JMF) (S.D.N.Y. Feb. 28, 2017), the U.S. District Court, Southern District of New York, found that the plaintiff plausibly alleged age discrimination under the ADEA against both his United States employer and its French parent company on a “single-employer” theory.
On August 3, 2015, the U.S. Court of Appeal for the Ninth Circuit issued a decision in France v. Johnson, holding that an average age difference of less than 10 years between an Age Discrimination in Employment Act (ADEA) plaintiff and the individual(s) promoted in lieu of the plaintiff creates a rebuttable presumption that the difference was insubstantial. The “rebuttable presumption” approach affords limited protection to an employer faced with an ADEA suit, and highlights the need for employers to implement appropriate policies and training to mitigate the risk of such claims.