Chapter 24 - § 24.3 • AN AGE DISCRIMINATION CASE — BURDENS AND PRESUMPTIONS

• Jurisdiction: Colorado

§ 24.3 • AN AGE DISCRIMINATION CASE — BURDENS AND PRESUMPTIONS

In either a disparate treatment or impact case, an applicant or employee has the ultimate burden of persuasion.²⁹ Employment discrimination involves constantly shifting burdens of proof, presumptions, and rebuttals, and often forces the fact finder to decide whether discrimination, intentional or not, may be inferred from indirect evidence.

§ 24.3.1—Applicant's or Employee's Prima Facie Case

An applicant or employee must begin by showing that:

1) He or she belongs to the protected class;
2) He or she applied for and was qualified for a job the employer was seeking to fill, or he or she was terminated and replaced by a less-qualified employee;
3) Despite his or her qualifications, he or she did not get the job or was terminated; and
4) After his or her rejection or termination, the position remained open and the employer continued to seek applicants with his or her qualifications.³⁰

The four elements of a prima facie case of age discrimination have also been delineated more generally in the Tenth Circuit as:

"1) she is a member of the class protected by the [ADEA];
2) she suffered an adverse employment action;
3) she was qualified for the position at issue; and
4) she was treated less favorably than others not in the protected class."³¹

Adverse actions include not only refusal to hire, employment termination, and failure to promote, but also other significant changes in employment status, such as reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.³²

These prima facie elements are the first part of what is commonly referred to as the McDonnell Douglas framework.³³ There must be a logical connection between the prima facie elements and the alleged discrimination, and the employee must present sufficient evidence to create a reasonable inference that the employment decision at issue was based on age.³⁴

An applicant's or employee's prima facie case may be established with direct evidence or evidence that, if believed, suffices to prove the issue without inference, presumption, or resort to other evidence.³⁵ Direct evidence is very difficult if not impossible for the applicant or employee to present, and as such, the McDonnell Douglas framework is designed to ensure that an applicant or employee has his or her day in court despite a lack of direct evidence.³⁶

"Prima facie" means evidence that, without an explanation or rebuttal, produces a required conclusion, which in the age discrimination context is that the employer discriminated against the employee based on his or her age.³⁷ Once the applicant or employee establishes his or her prima facie case, a rebuttable but strong presumption of discrimination is created.³⁸ The applicant's or employee's evidence does not have to be sufficient enough to create a question for a jury, but must be sufficient enough to create a reasonable presumption.³⁹

§ 24.3.2—Employer's Rebuttal

Once an applicant or employee has established his or her prima facie case and created a presumption of discrimination, the burden then shifts to the employer to rebut the presumption by showing that the applicant was not hired or the employee was not promoted or was terminated based on legitimate, non-discriminatory reasons.⁴⁰ An employer does not have to prove that it was actually motivated by the legitimate reason, but that there is a genuine issue of fact as to whether it discriminated.⁴¹ In Texas Department of Community Affairs v. Burdine, the U.S. Supreme Court clarified that an employer must "clearly explain" its legitimate reasons, not prove them by a preponderance of the evidence.⁴²

There are many "legitimate reasons" defined by statute and case law available to an employer. Specifically, if an employer can show that its decision was based on something other than the applicant's or employee's age, it can defeat the presumption created by the applicant's or employee's prima facie case that it unlawfully discriminated.⁴³ The employer does not have to prove that it was actually motivated by the legitimate reason, but must show that it is more likely than not that it did not rely on age in making its decision.⁴⁴ As the Supreme Court explained in Hazen Paper Co. v. Biggins, if the employer's decision is based only on factors other than age, the need for protection "disappears."⁴⁵

Some possible defenses and legitimate reasons include:

• Factors other than age. There are a variety of legitimate reasons that an applicant may not be hired or an employee not promoted or terminated, and the prohibition on age and other types of discrimination is not to prevent an employer from rejecting or

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