11.7B AGE DISCRIMINATION—DAMAGES—WILLFUL DISCRIMINATION—LIQUIDATED DAMAGES
If you find that the plaintiff is entitled to recover back pay, you must also determine if the defendant's conduct was willful. The plaintiff has the burden of proving willfulness by a preponderance of the evidence.
A defendant’s conduct is willful if the defendant knew or showed reckless disregard for whether, the [describe the alleged discriminatory act] was prohibited by law.
The ADEA incorporates the liquidated damages provision of the Fair Labor Standards Act ("FLSA"). 29 U.S.C. § 626(b)(ADEA remedies provision); see 29 U.S.C. § 216(b) (FLSA remedies provision). However, unlike the FLSA, the ADEA awards liquidated damages only if the defendant’s violation is willful. 29 U.S.C. § 626(b) (ADEA remedies provision); Lorillard v. Pons, 434 U.S. 575, 581 (1978); compare Bratt v. County of L.A., 912 F.2d 1066, 1071 (9th Cir.1990) (holding that under the FLSA, employer can only avoid liquidated damages by proving that it acted with "a good faith intent to comply with the FLSA and a reasonable basis for its interpretation of the FLSA and the applicable regulations.").
Willfulness is a question for the jury to decide. See E.E.O.C. v. Pape Lift, Inc., 115 F.3d 676, 681 (9th Cir.1997); Brooks v. Hilton Casinos Inc., 959 F.2d 757, 767 (9th Cir.1992) (award of liquidated damages is mandated on jury finding of willfulness). If the jury finds willfulness, the plaintiff is entitled to double the amount of back pay awarded. Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1348 (9th Cir.1987) ("By the express terms of the statute, liquidated damages are an additional amount equal to the backpay and benefits award."). The verdict form should provide a separate question as to willfulness.
An employer acts willfully when it "‘knew or showed reckless disregard’ for whether the ADEA prohibited its conduct." Cassino, 817 F.2d at 1348; see also Hazen Paper Co. v. Biggins, 507 U.S. 604, 615 (1993) (reaffirming that "[t]he standard of willfulness that was adopted in Thurston–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); Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1495 (9th Cir.1986).