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Age Discrimination Is it Getting Harder or Easier To Sue

August 1, 1996
Age discrimination recently has become an HR hot spot. As the baby boomers slide into their fifties, the issue of age has never been more potent. For the next few decades, expect to see repeated invocations of the Age Discrimination in Employment Act (ADEA). The ADEA, which protects employees from their 40th birthdays on, bars discrimination on the basis of age in employment issues: hiring, promotion, training, compensation, discipline, discharge—basically every aspect of being employed.

A recent Supreme Court ruling, O'Connor v. Consolidated Coin Caterers Corp., had employers nervous that the ADEA's reach would broaden even more. Pundits speculated that it would make it easier for employees to bring suit. Not necessarily so, it turns out, but the factors for determining age discrimination have shifted a bit. Joseph Baumgarten, partner at New York City-based law firm Proskauer Rose Goetz & Mendelsohn LLP, tells you what you need to know.

Can you offer some background on the O'Connor case?
The plaintiff, Mr. O'Connor, who was 56, was discharged. He alleged that he was replaced by a 40-year-old. What the court was called upon to decide was this question: When an employee in a protected age group under the ADEA is discharged, and is replaced by another employee who's also within the protected age group, does that mean that the discharged employee can't bring a claim of age discrimination?

What did the Court decide?
The answer was no [the discharged employee can bring a claim]. And the reason why, as I see it, is that age-discrimination cases are somewhat different than race-discrimination or sex-discrimination or country-of-origin discrimination cases. Age isn't an immutable characteristic. Age is relative. That's point No 1. Point No. 2 is that the protected age class under the ADEA is defined as people who are 40 or older. That's an arbitrary line. Congress could've protected people who are 50 and older, 60 and older or for that matter people who are 20 and older. So the fact that two employees—a plaintiff and his replacement—are both older than 40 really doesn't tell you much about whether the plaintiff was a victim of age discrimination.

So the Court is saying an employee protected by the ADEA could be replaced by another person protected by the ADEA and still be the victim of age discrimination?
Somebody who is 40 years old may be considered young compared to a 60-year-old, but may be considered old compared to a 20-year-old. I think that's really the lesson of the case. I think [the Court] had little trouble reaching that conclusion—it was a comparatively short decision, and a unanimous decision. I think that the case isn't really a surprise. I think it was a common-sense decision. Not much that's controversial there.

Nothing for employers to be concerned about?
Now there's kind of a twist on it which is this: Scalia says in his decision that the real inquiry isn't whether the replacement was within or outside of the protected age group. Scalia says the real inquiry is whether the plaintiff was replaced by someone who's substantially younger than him or her. So take the example of a 40-year-old being replaced by a 39-year-old. The 39-year-old isn't within the protected age group. So in that situation you have a 40-year-old within the protected age group being replaced by someone who isn't in the protected age group. [The decision implies] that's much less suggestive of age discrimination—than the 56-year-old being replaced by the 40-year-old.

What does that mean to employers?
What the Supreme Court says is to determine whether a person was discriminated against, you have to look and see if his or her replacement was substantially younger. And if the person wasn't substantially younger, then as I read the decision, the plaintiff will not be able to establish a prima facie case of discrimination.

So this case hasn't set grounds for more suits?
The decision has been widely perceived as opening the doors for more age-discrimination suits—and to some extent that's true [because it allows ADEA-covered employees to bring suit even when replaced by other ADEA-covered employees]. But there's that twist on it [ensuring the focus on discrimination decisions is the age spread, not just who's covered by the ADEA and who isn't].

In certain cases, I think the decision may close the door on age-discrimination cases. We sometimes get age-discrimination cases brought by people who are 40, 41 or 42 years old, and I think for people in that age bracket—particularly when they're replaced by someone 39, 38, or 37—this decision suggests those [plaintiffs] are going to have a much more difficult time proving discrimination.

What are the broader implications of this ruling?
I think you'll see courts continuing to grapple with what kinds of evidence will support an age-discrimination claim. It's difficult to prove discrimination because discrimination is a state of mind—even people who discriminate aren't very likely to say so out loud. So what all this [indicates] is the need to establish some way of proving by inferences what the decision maker's state of mind was.

How could that be done?
I think we'll see even more litigation about [age discrimination] as we go forward—litigation based on inferential evidence. That's evidence that isn't direct evidence of discrimination, such as comments made by an employer, but evidence from which a jury could reasonably deduce that an employment decision was based on age.

Is there anything employers should do differently in light of this ruling?
Employers should continue to be careful in all things that hopefully they've always been careful about. The touchstone in a discrimination case is typically a question of disparate treatment. Be able to prove that you had a legitimate, nondiscriminatory basis for taking the action you took. Be able to demonstrate that different people across different age lines—and for that matter different races and sexes—were subject to the same standards, held to the same expectations, were given a fair opportunity to perform and clear notice of what was expected of them. [Those] are the kinds of things judges and juries look at when they're evaluating these cases.

Personnel Journal, August 1996, Vol. 75, No. 8, pp. 100-103.