Proving age discrimination

• Author: Cathy Ventrell-Monsees
• Pages: 249-322

PROVING AGE

DISCRIMINATION

5-1

CHAPTER 5

PROVING AGE DISCRIMINATION

I. GENERAL METHODS OF PROOF

A. INTRODUCTION

§5:10 ADEA Prohibitions

§5:20 Disparate Treatment vs. Disparate Impact

§5:30 Pleading Requirements

II. DISPARATE TREATMENT

A. BECAUSE OF AGE

§5:40 But-For Is a Traditional and Sweeping Causation Standard

§5:40.10 But-For Cause Does Not Mean “Sole Cause”

§5:40.20 “A Determining Factor” Still Establishes Liability Under the ADEA

§5:40.30 Multiple Claim Cases Are Not “Mixed Motive” Cases

§5:40.40 The War Over the Causation Standard is Really About Who Bears the Burden of Proof

§5:40.50 Gross Does Not Apply to Federal Employees’ ADEA Claims

§5:40.60 Legislation to Overturn Gross

B. FRAMING THE EVIDENCE TO PROVE DISPARATE TREATMENT

§5:50 Beware Traps in the Labels for Various Methods of Proving Disparate Treatment

§5:60 Direct Evidence is Rare

§5:60.10 Def‌inition of Direct Evidence

§5:60.20 Direct Evidence Makes McDonnell Douglas Model Inapplicable

§5:60.30 Facially Discriminatory Plans and Policies

§5:60.40 Ageist Statements Constituting Direct Evidence

§5:70 McDonnell Douglas Indirect Proof Method

§5:70.10 Not Applicable to Motion to Dismiss, Jur y Instructions or Post-Verdict

§5:70.20 McDonnell Douglas Framework Still Applies After Gross

§5:70.20.10 Courts Applying McDonnell Douglas Framework After Gross

§5:70.20.20 Courts Modifying McDonnell Douglas Framework and

Imposing Heightened Standards of Proof After Gross

§5:70.30 Courts Err in Rigid Adherence to McDonnell Douglas

§5:80 Prima Facie Case

§5:80.10 Plaintiff is a Member of the Protected Class

§5:80.20 Plaintiff Is Qualif‌ied/Performing Satisfactorily

PROVING AGE

DISCRIMINATION

AGE DISCRIMINATION LITIGATION 52

§5:80.20.10 Relevance of Performance to Prima Facie Case,

Employer’s Reason and Pretext

§5:80.30 Adverse Employment Action Def‌ined

§5:80.40 Fourth Element of Prima Facie Case – Some Evidence That Age Was a Factor

§5:80.40.10 Treatment of Younger Employees

§5:80.40.10.10 Similarly Situated Requirement

§5:80.40.10.20 Substantially Younger Comparator

§5:80.50 Discharge Cases

§5:80.50.10 General

§5:80.50.20 Reductions in Force – Modif‌ied Prima Facie Case

§5:90 Employer’s Assertion of a Legitimate, Nondiscriminatory Reason

§5:90.10 Were Plaintiff’s Selection in RIF and the RIF Criteria Nondiscriminatory?

§5:100 Pretext

§5:100.10 False Reasons as Evidence of Pretext

§5:100.20 No Factual Basis for Employer’s Asserted Reason

§5:100.30 Asserted Reasons Did Not Motivate or Were Insuff‌icient for Action Taken

§5:100.40 Shifting, Inconsistent, or Implausible Reasons as Evidence of Pretext

§5:100.50 Inconsistent Application of Policies or Procedures

§5:100.60 Challenge Subjective and Objective Reasons as Evidence of Pretext

§5:100.70 Evidence of Plaintiff ’s Superior Qualif‌ications

§5:100.80 Pretext in RIF Cases

§5:100.90 Pretext – Not “Pretext Plus” – is the Standard

C. AGE-RELATED COMMENTS AS EVIDENCE OF BIAS

§5:110 Use Supreme Court Standards for Relevance and Weight

§5:110.10 Clarity and Content of Statement

§5:110.20 Statements by Those Primarily Responsible for Decision

§5:110.30 Reeves Makes Clear that the Context of the Statement is NOT Dispositive When

Statement is Proffered as Circumstantial Evidence

§5:110.40 Additional Strategies to Help Courts and Juries See Ageist Comments as Probative

§5:110.40.10 Argue Comments are Circumstantial Evidence

§5:110.40.20 Challenge Additional “Stray Remarks” Requirements:

Not Factors Relevant to Circumstantial Evidence

§5:110.40.3 0 Have Client and Others Testify about Meaning and Impact of Ageist Comment

§5:110.40.40 Demand Same Standards as Used for Racist or Sexist Comments

§5:110.40.50 Comments are Windows Into Decisionmaker’s Mind

§5:110.50 Ageist Statements and Actions by Non-Decisionmakers

Who Inf‌luence a Decision (aka “Cat’s Paw”)

§5:110.60 Ageist Statements Made to Others

§5:110.70 Comments About Retirement

§5:110.70.10 Don’t Argue Such Comments are Direct Evidence of Age Discrimination

§5:110.70.2 0 Cases Recognizing Retirement Comments as Evidence of Age Discrimination

§5:110.70.30 Cases Discounting Retirement Comments as Evidence of Age Discrimination

§5:120 Corporate Culture and Stereotyping Evidence

§5:120.10 Circuit Court Analyses

§5:120.20 Unconscious or Implicit Bias

§5:120.30 Discovery of Culture and Stereotyping Evidence

§5:120.40 Statements Evidencing an Ageist Corporate Culture or Aging Workforce

§5:130 Treatment of Comparators as Pretext Evidence

PROVING AGE

DISCRIMINATION

53 PROVING AGE DISCRIMINATION

III. DISPARATE IMPACT

§5:140 ADEA Permits Impact Claims

§5:140.10 Disparate Impact Claims in Hiring

§5:150 Establishing a Disparate Impact Claim

§5:150.10 Identify Particular Practice That Caused the Impact

§5:150.20 Statistically Demonstrate a Disproportionate Impact

§5:160 “Reasonable Factor Other Than Age” Defense to Disparate Impact Claims

§5:160.10 Employer Must Plead and Prove RFOA as an Aff‌irmative Defense

§5:160.20 Factor Cannot Be Related to Age

§5:160.30 Factor Must Be Job-Related to Be Reasonable

§5:160.40 Reasonableness Test Requires More Than a Rational Basis

§5:160.50 Wards Cove Does Not Apply to ADEA Disparate Impact Defense

§5:160.60 What Meacham Means for Employers Contemplating Reductions-in-Force

§5:170 EEOC Regulation on RFOA Defense to Disparate Impact Claims

§5:180 Plaintiff ’s Rebuttal in Disparate Impact Cases

§5:190 Circuit Court Disparate Impact Decisions

IV. AGE-PLUS THEORY OF INTERSECTIONAL DISCRIMINATION

§5:200 Age Plus Another Protected Trait

V. FORMS

Form 500 Plaintiff- Appellant’s Petition for Rehearing (re ADEA causation standard) [Pelcha]

Form 501 AARP Amicus Brief in Support of Plaintif f-Appellant’s Petition for Rehearing

(re ADEA causation standard) [Pelcha]

Form 502 Petition for Certiorari (re ADEA causation standard) [Pelcha]