The prima facie case of age discrimination in reduction-in-force cases.

• Author: Lind, Jessica

INTRODUCTION

The Friends Corporation, a distributor of fine coffees, decided to eliminate part of its sales force following a slow-down in its sales. Monica, a 59-year-old saleswoman, had been employed by Friends for 12 years, while Rachel, a 24-year-old with similar job responsibilities, had begun working for Friends only 18 months ago. Both Monica and Rachel had received favorable reviews from their supervisor during their most recent evaluations. As part of its reduction-in-force, Friends's management chose to discharge Monica and to retain Rachel. Monica filed suit against Friends for age discrimination. What evidence must Monica present in order to meet her prima facie burden?

In 1973, the Supreme Court in McDonnell Douglas Corp. v. Green(1) created a three-part burden-shifting framework for resolving intentional discrimination suits brought under Title VII of the Civil Rights Act of 1964.(2) The first part of the framework requires the employee-plaintiff to establish a prima facie case, which consists of four elements. The plaintiff must show that she belongs to a protected group,(3) that she applied and was qualified for an open position, that the employer rejected her application, and that the employer continued to seek applicants from persons of plaintiff's qualifications.(4) If the plaintiff succeeds in establishing her prima facie case, an inference of discrimination arises, and the burden of production shifts to the employer-defendant to come forward with a legitimate, nondiscriminatory reason for its actions.(5) At the third stage, the plaintiff has a final opportunity to demonstrate that discriminatory animus, rather than the employer's proffered explanation, motivated the employer's actions.(6)

Although originally proposed for cases involving discriminatory hiring practices,(7) the McDonnell Douglas prima facie case has been modified to fit other contexts. For example, where the employer has fired the plaintiff and hired a replacement, courts have modified the second and fourth prongs of the prima facie case, requiring that the plaintiff demonstrate that she was qualified for the position she formerly held and that the employer replaced her with an individual outside the protected class.(8)

The McDonnell Douglas framework subsequently has been applied to claims brought under the Age Discrimination and Employment Act(9) (ADEA).(10) Application of the framework to reduction-in-force (RIF) cases brought under the ADEA(11) has proven problematic given the particular circumstances of the RIF.(12) A typical RIF case arises when an employer restructures its workforce, eliminating one or more job positions.(13) Because the employer fires the plaintiff after eliminating her position, the plaintiff cannot show that the employer replaced her with an individual outside the protected class with the plaintiff 's qualifications -- the fourth prong of the prima facie case. Consequently, courts have tried to modify the McDonnell Douglas prima facie case in order to reflect the particular circumstances of a RIF, but they have not done so in a consistent manner. Some courts ask only that the plaintiff show that the employer retained a younger employee in a position similar to that formerly held by the plaintiff.(14) Other courts employ a flexible fourth element that requires the laid-off worker to present evidence "from which a factfinder might reasonably conclude that the employer intended to discriminate" without specifying what form that evidence must take.(15)

This Note proposes that courts require the plaintiff in a RIF case to show, as part of her prima facie burden, that the employer reassigned at least part of her job responsibilities to a younger individual of equal or lesser qualifications. Part I describes the analytical framework applied to most intentional discrimination cases -- the McDonnell Douglas framework. Part Il explains that the RIF plaintiff cannot meet the specific requirements of the prima facie case as articulated in McDonnell Douglas because her firing occurs in conjunction with the elimination of her position. This Part then examines two approaches taken by the courts with respect to the prima facie case in the RIF context and concludes that neither approach achieves the primary goal of the McDonnell Douglas prima facie case: prospectively refuting the most common legitimate explanations for the employer's conduct. Part III recommends that courts adopt a prima facie case that requires a RIF plaintiff to demonstrate that she possesses equivalent objective qualifications to the retained, younger employee(s) and that her employer did not eliminate completely her job responsibilities but only her position. Together, these elements are sufficient to support an inference of employment discrimination in the RIF context.

1. THE LEGAL FRAMEWORK FOR EMPLOYMENT DISCRIMINATION CASES

   Because the ADEA grew out of Title VII of the 1964 Civil Rights Act(16) and because much of the language in the ADEA parallels that of Title VII, courts have transferred to the ADEA context the standards and methods of proof developed under Title VII employment discrimination claims.(17) Thus, any evaluation of ADEA disparate treatment claims requires an initial examination of Title VII employment discrimination cases, the most important being McDonnell Douglas Corp. v. Green.(18)

   Under Title VII and the ADEA, a plaintiff who alleges that her employer intentionally discriminated against her may present either direct evidence of a discriminatory motive or circumstantial evidence from which the fact finder can infer intentional discrimination.(19) Evaluation of direct evidence does not pose much difficulty for the courts. The vast majority of Title VII and ADEA cases, however, do not involve direct evidence of discrimination because plaintiffs rarely come to court with the "smoking gun" in hand.(20) Plaintiffs instead tend to rely on circumstantial evidence of employment discrimination.

   In McDonnell Douglas, the Supreme Court established guidelines for evaluating circumstantial evidence of employment discrimination. In deciding McDonnell Douglas, the Supreme Court set forth a three-stage analytical framework for the evaluation of employment discrimination claims. The plaintiff always retains the ultimate burden of persuading the court that discrimination motivated the defendant's employment decision,(21) but the burden of production shifts between the plaintiff and the defendant in order "to bring the litigants and the court expeditiously and fairly to this ultimate question."(22) This Part briefly describes each of the three stages of the McDonnell Douglas burden-shifting framework.

   1. The Prima Facie Case

      The plaintiff first must establish a prima facie case. In McDonnell Douglas, the Court identified four specific conditions that comprise a prima facie case of racially discriminatory hiring practices:

      (i) that [the plaintiff] belongs to a racial minority; (ii) that he applied

      and was qualified for a job for which the employer was seeking applicants;

      (iii) that, despite his qualifications, he was rejected; and (iv)

      that, after his rejection, the position remained open and the employer

      continued to seek applicants from persons of complainant's

      qualifications.(23) Satisfaction of these four elements gives rise to a rebuttable presumption of discrimination.(24)

      The Supreme Court made clear in Texas Department of Community Affairs v. Burdin(25) that it intended for the prima facie case to include "circumstances which give rise to an inference of unlawful...