dissenting.
I agree with the majority’s decision upholding the jury’s verdict that Century is liable under the ADEA. I also join in the *1465majority’s treatment of the district court’s denial of Century’s new trial motion and of the EEOC’s cross-appeal. However, I respectfully dissent from the majority’s decision to uphold the jury’s finding that Century is liable for liquidated damages because it willfully violated the ADEA.
An employer acts willfully for purposes of the ADEA only if the employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA.” Trans-World Airlines, Inc. v. Thurston, 469 U.S. 111, 126, 105 S.Ct. 613, 624, 83 L.Ed.2d 523 (1985); see also McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 135 n. 13, 108 S.Ct. 1677, 1681, 1682 n. 13, 100 L.Ed.2d 115 (1988); Coston v. Plitt Theatres, Inc., 860 F.2d 834, 835-36 (7th Cir.1988). The employer’s knowledge of the ADEA’s requirements is not enough to show willfulness; even if the decision-maker is familiar with age discrimination law, his action is not willful unless he knew or was reckless about whether that specific action violated the ADEA. See Coston, 860 F.2d .at 837.
Thurston held that Congress intended liability under the ADEA to be “two-tiered”: not all ADEA violations are — or should be — willful. See Thurston, 469 U.S. at 128, 105 S.Ct. at 625. In Thurston, it was relatively simple to apply the willfulness standard it adopted while remaining faithful to the two-tiered liability structure, since the finding of an ADEA violation in Thurston did not depend on an inquiry into the employer’s state of mind. Thurston examined a company policy that prevented pilots, after reaching age 60, from becoming flight engineers. The Court concluded that while the policy violated the ADEA, the violation was not willful because the company had adjusted the policy in accordance with its attorneys’ advice. Under this standard, after finding liability (tier one), the factfinder could determine whether the employer acted with the state of mind necessary to constitute willfulness (tier two). Here, rather than reviewing a policy, we have a disparate treatment situation. As the majority notes, applying the Thurston willfulness standard while adhering to the ADEA’s two-tiered liability structure is difficult. The line between willful and non-willful violations “is not easy to draw and is even more difficult to articulate.” (Majority Op. at 1457.)
To draw the line between the two tiers of discrimination, it might be easier to define a violation of the ADEA that is not willful. To find age discrimination, a fact-finder must conclude that age was a “determining factor” or a “but-for” cause in the employer’s decision. The language in some of our cases has equated this finding with a finding of intentional discrimination. See Burlew v. Eaton Corp., 869 F.2d 1063, 1066 (7th Cir.1989) (collecting cases). But if, in a disparate treatment case, a finding of tier one liability “is tantamount to a finding of intentional discrimination, and the employer knew that age discrimination is prohibited by the ADEA (as virtually all employers know [1]), the result would be a finding of willfulness in almost every disparate treatment case.” Burlew, 869 F.2d at 1067. This result, however, is contrary to Thurston’s admonition that Congress did not intend that a willfulness finding should flow automatically from every finding of age discrimination.
So when is age discrimination in an individual treatment case not willful? Despite our cases equating a finding of age discrimination with a finding of intentional discrimination, this circuit has also adhered to the position that age discrimination can be unconsciously motivated. “Age discrimination may simply arise from an unconscious application of stereotyped notions of ability rather than a deliberate desire to remove older employees from the workforce....” Syvock v. Milwaukee Boiler Mfg. Co., 665 F.2d 149, 154-155 (7th Cir.1981), overruled in part, Coston v. Plitt Theatres, Inc., 860 F.2d 834 (7th Cir.1988) (emphasis in original); see also Brown v. M & M Mars, 883 F.2d 505, 514 (7th Cir.1989); Burlew, 869 F.2d at 1066. Logically, if an employer acts because of a stereotype based on age — even if unconsciously — age can be the “but for” cause or determining factor in the employer’s decision. Absent the age-based stereotype the employer would have acted differently. The majori*1466ty apparently accepts Syrock’s pronouncement that age discrimination can be unconscious, see Majority Op. at 1458, a position consistent with Burlew’s statement that this proposition “appears.to still be good law.” Burlew, 869 F.2d at 1066, n. 5.
The principle that age discrimination can be unconsciously motivated provides a basis for distinguishing between willful and non-willful discrimination in disparate treatment cases. This principle is faithful to the ADEA’s two-tier liability approach, yet allows for the possibility of “non-willful discrimination directed towards an individual_” Syvock, 665 F.2d at 155. To determine whether an ADEA violation was willful, we should ask: Was the employer’s conduct consciously motivated by age, or was it the unconscious application of a stereotype about older workers’ abilities? As we stated in Brown, “where an employer consciously and deliberately does what it knows or must know the ADEA prohibits, that employer has acted willfully.” Brown, 883 F.2d at 514 (emphasis added). But “a plaintiff who proves only ... subtle and unconscious discrimination has not shown willful discrimination.” Id.; see also Syvock, 665 F.2d at 155, & 156 n. 10.
To act willfully under the ADEA, an employer must know or be reckless about whether what it is doing violates the ADEA. Unconsciously motivated age discrimination does not meet this standard because the necessary knowledge that the act violates the ADEA is missing. The ADEA only prohibits discrimination because of age. If an employer really believes he is acting for a reason other than age — for example, an employee’s perceived inability to adapt to new working conditions — he is not acting willfully, even if this perception results from “an unconscious application of stereotyped notions of ability,” because he does not know, nor must he know, that his act violates the ADEA.
The question at this point in the case, therefore, is not whether Parks and Havi-land knew what the ADEA prohibited. Nor is the question whether Parks and Haviland actually violated the ADEA. The question, rather, is whether Parks and Haviland knew or were reckless about whether they were violating the ADEA; this, in turn, boils down to whether Parks and Haviland were consciously motivated by age when they acted, or whether their action was based on the unconscious application of an age-based stereotype.
The majority approaches this inquiry, see Majority Op. at 1458, but quickly departs to focus instead on Parks’ and Haviland’s knowledge of the ADEA’s requirements and their lack of any inquiry as to whether their contemplated action (firing certain announcers) violated the ADEA. See id. at 1459-1460. But knowledge of the ADEA’s requirements by itself is not enough to show willfulness. Moreover, it would be pointless to check with a lawyer to see if firing an older person for some reason other than age violates the ADEA; anybody who knows the ADEA’s requirements knows that the ADEA only prohibits firing workers because of their age. Firing older workers for some other reason is not a violation. Failure to check with a lawyer, plus tier one liability, is not enough to show willfulness, especially where the employer’s decision was not consciously motivated by age. Otherwise, every challenged action an employer may take with an older employee — regardless of the employer’s conscious motivation — would be with the risk that a jury may someday award the employee double damages because the employer did not first call his lawyer.
So now the ultimate question: Was the evidence here sufficient for a jury to find that Century willfully violated the ADEA? My answer is no. It is true that Century gave several different reasons for firing the older announcers and that the jury could reasonably have believed that Century was not being completely honest about its real reasons. But a finding of pretext does not in itself necessarily equate to a finding of willfulness. See Syvock, 665 F.2d at 157; Overgard v. Cambridge Book Co., 858 F.2d 371, 378 (7th Cir.1988). Keeping its youngest announcer could indicate that Century treated the older announcers less favorably than the younger one. But while this raises an inference *1467that age somehow played a part in the decision to fire the older announcers, it does not show that age was the conscious motivation behind the decision.
The nature of Century’s prevarication, moreover, cuts against an inference that Century was trying to hide consciously motivated age discrimination. Why would Century give one “false” reason (extra workload) to the announcers in its termination letter to them, and contemporaneously give a completely different “false” reason (announcing styles) for termination to three of them in person? Far from covering up any consciously illegal motivation, Century’s conflicting messages would likely arouse suspicions rather than cover up any consciously illegal motivation.
As in Syvock, there was no direct evidence that age motivated Century’s decision. The EEOC points to Parks’ statements that he was looking for a “younger sound,” and wanted “to attract a younger audience,” and other similar statements. See Majority Op. at 1456-1457. But these statements must be taken in context. “Younger sound” does not necessarily mean younger announcers. Rather it is a marketing concept which targets a different (and presumably more profitable) group of listeners. As it turns out, the new announcers that Century hired were younger than 40. But there is no other evidence that Century sought out younger announcers. Other evidence cuts against this inference. The audition tapes that Parks received from prospective new announcers did not indicate their ages. The testimony from both sides was unanimous that listeners cannot tell a radio announcer’s age from listening to his radio voice. A “young-sounding” older announcer would fit Century’s new format better than an “old-sounding” younger announcer. Younger sound depended on an announcer’s style, not age.
Moreover, the “younger audience” that Century was trying to attract with its new format was 40-54 year old listeners. See Majority Op. at 1457. If the targeted audience had been significantly younger, it would be more plausible to infer that Parks and Haviland went out of their way to hire younger announcers who were more likely to relate to this audience. However, why would Century go out of its way to seek out announcers considerably younger than its target audience?
Significantly, the announcers were not the only Century employees to lose their jobs because of Century’s format change. A number of sales representatives, engineers, and employees from Century’s AM station lost their jobs as wéll. Of a total of 24 employees that Century fired (including the announcers), 16 were younger than 40. Excluding the announcers, 16 of the other 18 employees fired were under 40. One of the sales representatives that Century retained was 70 years old. Century also retained two feature announcers, aged 52 and 60.
In short, the evidence does not reveal the kind of systematic removal of older employees that raises the inference that Century consciously sought to get rid of the older announcers because they were old. While I agree the evidence was sufficient for a jury to find an ADEA violation, I do not believe it was sufficient to show the consciously motivated age discrimination required to meet the ADEA’s willfulness standard. Therefore, I respectfully dissent.