Set-Offs Against Back Pay Awards Under the Federal Age Discrimination in Employment Act

This Note proposes a theory to govern set-offs against ADEA damage awards that best effectuates congressional ~tent. It suggests that courts should set off those types of benefits received after a violation that, had they been lost because of a violation, would have been included in the damage award. Part I identifies the proper measure of damages under the ADEA as the net loss of ‘job-related benefits,” doubled in cases of willful violation. It explains first that job-related benefits should be broadly defined to include unemployment compensation and social security benefits as well as wages, and second that the congressional desire to make victims of age discrimination “whole” is best served by awarding the net loss of these job-related benefits rather than the full loss of back pay – that is, by allowing some set-offs. Part II discusses which set-offs are appropriate, concluding that set-offs should include all employment-related gains received by the plaintiff, but not income generated independently of an employment relation.