U.s. Supreme Court Sets Age Discrimination Proof Requirements

• Publication year: 2000
• Pages: 37
• Citation: Vol. 29 No. 10 Pg. 37

29 Colo.Law. 37 Colorado Lawyer 2000.

2000, October, Pg. 37. U.S. Supreme Court Sets Age Discrimination Proof Requirements

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37

Vol. 29, No. 10, Pg. 37

The Colorado Lawyer
October 2000
Vol. 29, No. 10 [Page 37]

Hot Topics In Employment Law

U.S. Supreme Court Sets Age Discrimination Proof Requirements
by John M. Husband

Age discrimination actions are among the hottest and most difficult areas of employment discrimination litigation today. The number of charges filed with the Equal Employment Opportunity Commission ("EEOC") and the number of lawsuits filed will steadily increase as the American workforce ages. This trend, coupled with greater employee awareness of rights under the Age Discrimination in Employment Act ("ADEA"),1 point to increased litigation under this statute

The opportunity for employees to assert their rights and for employers to defend business actions under the ADEA often depends on where the lawsuit is brought. The courts have taken a statute enacted for nationwide application and interpreted it on a circuit-by-circuit basis. As a result the law in Denver is not the law in New York or Los Angeles

In an important case dealing with proof requirements, the U.S. Supreme Court has attempted to set uniform guidelines. This article briefly discusses the proof requirements under the ADEA and then examines the Court’s decision in the seminal case of Reeves v. Sanderson Plumbing Products, Inc.2

ADEA Cases: Burden Of Proof

Most ADEA cases are brought under the disparate treatment theory. Generally, the law governing allocation of proof in Title VII cases applies in ADEA actions.3 These principles are set out in several U.S. Supreme Court cases.4 In ADEA cases, employees suing for age discrimination must prove a prima facie case that (1) they were at least 40 years old when fired; (2) they were otherwise qualified for the position; (3) despite being qualified, they were adversely affected; and (4) they were replaced by someone younger (or if replaced by someone older, there is other evidence they were fired because of their age).

Once an employee establishes the prima facie case, the employer must offer evidence that it made its decision for some other legitimate, nondiscriminatory reason. The burden of proof then shifts back to the employee to show that the employer’s explanation is pretextual or false.5

Pretext has been a major hurdle for ADEA plaintiffs. To demonstrate pretext, plaintiffs must attack the employer’s proffered legitimate, nondiscriminatory reason for its actions by showing that it is a post hoc rationalization or not worthy of belief.6 Challenges by plaintiffs to less than all of the employer’s reasons or on collateral or irrelevant issues are not sufficient.7

The allocation of the burden of proof works well in most cases, but what if an employee can show that his or her employer lied about the reason for the firing but cannot prove that the real motive was age discrimination? The federal appeals courts have been split on this issue. At least three circuit courts took the position that if an employee could offer sufficient evidence to disbelieve the employer’s explanation, a jury could infer that the real reason he or she was fired was age.8 However, other circuit courts held that the employee had to prove not only that the employer’s explanation was false, but also that its real motivation was age discrimination. This was the so-called "pretext plus" standard.9

Evidentiary Standards for Age Discrimination

John M. Husband is a partner with...