concurring:
I concur in the judgment affirming the judgment of the district court. However, I write separately to express my concern with the lack of direction that Congress has given to the judiciary regarding the imposition of liquidated damages under section 626(b) of the ADEA.
To prove any violation of the ADEA, the individual plaintiff must show that the defendant intentionally discriminated on the basis of the plaintiffs age. The motive for the action must be the age of the employee/plaintiff. Yet, Congress has stated that liquidated damages are to be awarded only where a violation of the Act is “willful.” An intentional act is, by any reasonable interpretation of the word, a “willful” act. Thus, in practically all ADEA cases, a plaintiff with a meritorious claim will show that the defendant acted “willfully.”
The Supreme Court has ascertained that Congress did intend to establish a two-tier damage arrangement under the ADEA. In Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985), the Court indicated that, in certain cases, a distinction could be made between intentional acts and willful acts. The court held that where an employer adopts a program which adversely impacts employees because of their relatively advanced age, sincerely believing, as a result of responsible research and inquiry, that the policy is not prohibited by the ADEA, then the willful implementation of such a program, though potentially violative of the Act, is not “willful” conduct justifying an award of liquidated or punitive damages under section 626(b).
It thus appears one can, at least in disparate impact cases, differentiate intentional discrimination from willful discrimination. However, the type of personnel program challenged in the Thurston case will rarely appear in court. The usual ADEA case involves an employer whose discrete personnel actions are directed at one employee. Generally, the only issue presented is whether the action (failure to promote or dismissal) was taken because of the plaintiffs age or for an innocent reason. It is difficult to imagine a finding that an employer’s action against an employee, taken on account of his or her age, violates the ADEA but is somehow not a “willful” violation. As we noted in Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1100 (11th Cir.1987), “there is no logical way to square a finding of intentional discrimination with a finding of good faith on the employer’s part.”
In studying the ADEA and cases brought under it, I have concluded that where a defendant loses a typical case, the employer has necessarily been found guilty of a willful violation of the ADEA, and liquidated damages are required. Disparate impact cases such as Thurston are the only conceivable exception. If this result is not what Congress intended, then that branch of the government must alter the language of the ADEA.1 Given the plain *982meaning of the language used in § 626(b), I see only one way to apply it. I therefore join in affirming the district court.
LYNNE, Senior District Judge,concurring:
I concur and add only a few words for my fellow laborers in the trenches. Not every violation of the ADEA will meet the Thurston standard of willfulness, which this circuit has forthrightly adopted, and require the submission of such issue to a jury. By applying the ubiquitous Boeing test to the evidence the Court may be constrained to grant a motion for a directed verdict in a jury trial, or a motion to dismiss in a bench trial. It is crystal clear that the plaintiff employee bears the burden of satisfying the fact finder by a preponderance of the evidence that in terminating or demoting him or her the defendant employer acted in reckless disregard of the requirements of the ADEA in order to recover liquidated damages.
Unfortunately, it is manifestly impossible to formulate for the guidance of the lower courts a suggestion as to what evidence, qualitatively or quantitatively, will satisfy the Thurston standard. That is a familiar task for the Court on a case by case basis.
Unless the Congress sees fit to ameliorate the harshness of the rule which mandates the award of punitive damages on a finding of willfulness * without regard to the enormity of the wrong, double damages must be awarded. See note 22 to Thurston, 469 U.S. at 128, 105 S.Ct. at 625.
. It is perhaps not inappropriate to observe that persons discriminated against on account of age have a better remedy, by virtue of § 626(b) of the ADEA, than those discriminated against on account of race, sex, or religion who seek relief under 42 U.S.C. § 2000e et seq. ("Title VII”). Section 2000e-5 of that statute does not authorize an award of punitive damages. Richerson *982v. Jones, 551 F.2d 918 (3rd Cir.1977); White v. Washington Public Power Supply System, 692 F.2d 1286 (9th Cir.1982).
If the issue of willfulness is submitted to a jury on a special interrogatory, the following wording is suggested: Do you find from a preponderance of the evidence that in (demoting) (terminating) plaintiff the defendant acted in reckless disregard of the requirements of the ADEA?