Age discrimination is a hot topic these days. A blog post in Forbes entitled, Is There a Lawsuit Here? Five Tips for Older Job Seekers, piqued my interest. While the article was certainly informative, in my opinion, it contained certain misconceptions.
First, the article claimed that "proving you’ve been deprived of a job or laid off to sweep the path for younger and cheaper workers isn’t easy to do" and "is darn near impossible." To be clear, age discrimination is generally no more or less difficult to prove than discrimination based on gender, race, or any other protected category. Whether or not proving age discrimination is "impossible" will truly depend on the facts in each case. There is some indication, however, that age discrimination claims are potentially less difficult to prove since many jurors will be able to relate to the plaintiff or someday imagine themselves in the plaintiff's predicament. Consider the following statistics compiled by Jury Verdict Research:
- In 2008, age discrimination victims prevailed in 67% of all trials across the country -- as compared to a win rate of 53% for disability discrimination cases, 52% for race discrimination, and 60% in sex discrimination.
- In 2009, age discrimination tied with sex discrimination cases with a win rate of 57% -- as compared to 47% for disability discrimination and 52% for race discrimination
- From 2003 through 2009, age discrimination claims filed in state court received the highest median award at about $332,000. The next highest median award was in race discrimination cases, which came in at about $289,000
As any employment law attorney (regardless of whether they represent management or employees) will tell you, the cases with the strongest evidence of discrimination generally settle before trial. Therefore, the statistics above are likely based largely on cases where the employer thought it had a good chance of winning. Overall, the statement that proving age discrimination "is darn near impossible" is (at best) too large of a generalization.
Second, the article states that "[a]n employer can ask you how old you are. They shouldn’t, but they can." While this may be true in certain states, its not the case in Massachusetts. As the Employment Discrimination Guidelines make clear, Massachusetts employers can only inquire about a prospective employee's age in very limited circumstances:
Generally; the only proper question is, "Are you under 18, yes or no?" Questions about age may be allowed if necessary to satisfy the provisions of a state or federal law (for example, certain public safety positions have age limits for hiring and retiring). Also, if the Commission has previously identified age as a bona fide occupational qualification for the position.
An employer that violates this regulation by asking a prospective employee his or her age, when prohibited from doing so, indicates that the candidate's age is a factor in the hiring decision. Massachusetts courts have held that such forbidden inquiries serves as powerful evidence of discriminatory animus.
Third, the article references Gross v. FBL Financial Services, Inc., where the Supreme Court held that an plaintiff asserting wrongful termination based on age under the Age Discrimination in Employment Act (ADEA) bears the burden of proving that, “but for” age, he or she would not have been terminated. (Thanks to The Oyez Project, the oral argument before the Supreme Court in this case can be heard here). In doing so, the article appears to imply that the Gross decision: (1) dispensed with the McDonnell Douglas burden shifting framework, which we describe on our website's Age Discrimination page here; and (2) made it more difficult for victims of age discrimination to prove their claim.
Federal decisions that later applied the Supreme Court's analysis in the Gross decision cast serious doubt on the legitimacy of both claims. In Yee v. UBS, for instance, the Northern District of Illinois in 2010 explicitly rejected the first claim (i.e., that the McDonnell Douglas shifting framework is no longer operative):
UBS claims the Supreme Court did more than that in Gross, and held that the burden-shifting paradigm established in McDonnell Douglas is “inapplicable to the ADEA.” We disagree. In fact, defendants’ contention is belied by the express statement in Gross that the Supreme Court “has not definitely decided whether the evidentiary framework in McDonnell Douglas Corp. v. Green … utilized Title VII cases is appropriate in the ADEA context.” There is no basis in Gross to find that the Supreme Court decided sub silentio a question that was not presented in the case, especially since the Supreme Court acknowledged in Gross (and, for that matter, in Reeves and O’Connor) that it had not yet resolved the issue. To be sure, the Supreme Court in Gross clearly held that in ADEA cases a plaintiff must prove that discrimination was “the” reason for the adverse action to prevail. But, Gross did not equate the burden of proof in an ADEA with the method of presenting that proof.
(internal citations omitted) (emphasis added).
Likewise, in Jones v. Oklahoma City Public Schools, the Tenth Circuit in 2010 explicitly rejected the second claim (i.e., Gross makes it more difficult for victims of age discrimination to prove their claim):
OKC argues that Gross compels dismissal of Jones’ claim because it requires an ADEA plaintiff to provide some evidence that her employer was motivated solely by age when making an adverse employment decision. OKC’s argument is flawed on several levels, but we need address only one: It conflates two separate standards for causation. The ADEA, like other anti-discrimination statutes, includes a causation requirement. It prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The statute, however, does not define the phrase “because of,” and before Gross, it was unclear which causal standard applied. Gross clarified that the ADEA requires “but-for” causation. Consequently, to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the evidence that her employer would not have taken the challenged action but for the plaintiff’s age. “Although this argument was not raised below, inasmuch as [Gross] was decided after [Jones] filed her notice of appeal, we may consider changes in governing law arising during the pendency of the appeal.” OKC argues that in mandating but-for causation, Gross established that “age must have been the only factor” in the employer’s decision-making process. We disagree. The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA. Moreover, we have concluded that this causal standard does “not require[] [plaintiffs] to show that age was the sole motivating factor in the employment decision.” Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as “age was the factor that made a difference.”
(internal citations omitted) (emphasis added).
Even if the article's characterization of the Gross decision is correct, which I question, the decision would not be binding on state courts deciding an age discrimination claim under state law. For instance, age discrimination in Massachusetts is also prohibited under the Fair Employment Practices Act, which is separate and apart from the ADEA.
This is the longest blog post I've written in quite a long time and, as you can see above, the answers are never as simple or as straightforward as some would like to think. Luckily, the take-away messages are simple: (1) If you feel that your employer is treating your poorly because of your age, meet with an attorney who specializes in employment who can analyze the strength of your potential claim, and (2) A little knowledge is a dangerous thing.