Two workers over 40

If you believe that you were not hired/promoted or were terminated/laid off because of your age, can you still have a case if the person given preference is also over 40?

The short answer is “yes.”

It does not matter that the person favored is also over 40 if he is “substantially younger.”

The Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), confirmed that age discrimination can occur even if the person favored is also over 40. In O’Connor, a 56-year-old who was fired and replaced by a 40-year-old sued under the Age Discrimination in Employment Act of 1967 (“ADEA”). The district court granted the defendant’s summary judgment motion and the Court of Appeals affirmed, holding that the plaintiff failed to make out a prima facie case of age discrimination because he failed to show that he was replaced by someone under the age of 40. The Supreme Court, in an opinion written by Justice Scalia, held that an employee asserting age discrimination need not demonstrate that his replacement was under 40; rather, he must demonstrate that his replacement was “substantially younger.” O’Connor, 517 U.S. at 312. The Court explained:

The discrimination prohibited by the ADEA is discrimination “because of [an] individual’s age,” 29 U.S.C. § 623(a)(1), though the prohibition is “limited to individuals who are at least 40 years of age,” § 631(a). This language does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees because of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to “40 or over” discrimination) when a 40-year-old is replaced by a 39-year-old than when a 56-year-old is replaced by a 40-year-old. Because it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas [Corp. v. Green, 411 U.S. 792] prima facie case.
. . .
Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.

Thus, what matters is the relative age difference, rather than whether the persons favored were “over 40” and “under 40.”

Age discrimination can be established even if the age difference is small.

A new Ninth Circuit case, France v. Johnson, 795 F.3d 1170 (9th Cir. 2015) confirms that age discrimination can be established even if the age difference is small (less than 10 years).

John France was a border patrol agent working for the department of homeland security in Tuscon. In 2007, Tuscon Sector Chief Patrol Agent Robert Gilbert established a new program that split Assistant Chief Patrol Agents (Agents) into two categories, operations and administration. Before the program, all such agents were at the GS-14 pay grade. After the creation of the program, agents in administration stayed at the GS-14 level while those in operations were assigned to the GS-15 level. Four GS-15 level positions were created and were posted. Twenty-four eligible candidates applied, including France. Their ages ranged from 38 to 54, with France being the oldest. The candidates were ranked based on their scores on a promotional assessment test, and the top twelve were invited to interview with Gilbert and two other Chief Patrol Agents in Washington, D.C. They then narrowed their choices to the top six, and France did not make the cut. Gilbert then recommended four people to the Chief Border Patrol Agent David Aguilar. Aguilar, in turn recommended them to the Deputy Commissioner, who confirmed the selections.

France, who was 54, sued the agency, alleging age discrimination in violation of the ADEA. The four selected were 44, 45, 47, and 48 years old. The agency then moved for summary judgment and offered nondiscriminatory reasons for not promoting France, including that he lacked the leadership, judgment, flexibility, and innovation necessary for the position.

France’s evidence included the following:

  • that Gilbert had said in a meeting that he wanted “young, dynamic agents” to staff the GS-15 positions;
  • that Gilbert repeatedly suggested that France retire, even when France responded that he had no interest in doing so; and
  • that Aguilar had a preference to promote younger, less experienced agents.

The district court granted summary judgment, concluding that while France had established a prima facie case of age discrimination, he did not demonstrate a genuine dispute of material fact on the agency’s reason for not selecting him.

The Ninth Circuit reversed. It began by discussing the statements made. The court stated that it was a close question whether the retirement discussions constituted direct evidence or were circumstantial, but concluded that they were circumstantial. To be direct evidence, they have to be directly tied to the adverse employment action. The court then said that the statement attributed to Aguilar that he liked “young, dynamic agents” “probably goes beyond a stray remark, although standing alone, this evidence would be thin support to create a genuine dispute of material fact.”

The court determined that, as here, where both direct and circumstantial evidence were presented, it was most appropriate to consider the propriety of summary judgment under the McDonnell Douglas framework.

The court then looked at whether France established a prima facie case. In a failure-to-promote age case, this requires a showing that: (1) Plaintiff was at least 40 years old, (2) was qualified for the position for which an application was submitted, (3) was denied the position, and (4) the promotion was given to a “substantially younger” person.

Here, the four selected, who were all over 40, were on average only 8 years younger.

As the Court pointed out, the majority of circuits to consider what it means to be substantially younger have held that a difference of 10 years, without more, is insufficient for a prima facie case of age discrimination. The court then decided to follow the Seventh Circuit in adopting a rebuttable presumption approach; an average age difference of 10 years or more is presumptively substantial, one less than ten years is presumptively insubstantial. But the plaintiff can rebut the presumption that age was not substantial through direct or circumstantial evidence that shows that age was a significant factor. The court determined that the evidence that France had presented was sufficient to establish a prima facie case.

As France had not challenged that the agency had articulated non-discriminatory reasons, the Court moved to the third step of the McDonnell Douglas framework. It concluded that France’s evidence was sufficient to create a genuine issue of material fact that the reasons he was not selected were pretextual. It rejected the district court’s determination that Gilbert’s statements were insufficient because he had a limited role in the decision. First, the court reaffirmed the cat’s paw doctrine, pointing out that Gilbert need not be the final decisionmaker if the plaintiff can establish that he influenced or was involved in the decision. Second, the court determined that the district court erred in concluding that Gilbert had a limited role in the hiring decision given that he created the program, was deferred to in the decision-making process, and had his suggestions accepted without change.


In considering age discrimination cases, the key question is whether you can prove that age was unlawfully taken into account when making the decision. You may be able to establish this even if those treated more favorably were also over 40.

Can It Be Age Discrimination If The Person Favored Is Also Over 40? was last modified: September 23rd, 2015 by Ramit Mizrahi
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