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When do employers need to be on-guard for age discrimination claims?



By Patrick Ogilvy

Across the majority of the country, federal courts view an age difference of less than ten years as insufficient to establish the basis for an age discrimination claim. For example, if a 65-year-old individual is selected for a job over a 67-year-old individual, courts will typically view that difference in ages as insubstantial. Employers should be especially aware of age discrimination law when making hiring, promotion or other employment decisions involving individuals that vary in age by ten or more years. As this case demonstrates, however, even if the difference is less than ten years, the potential for liability still exists.

The U.S. Court of Appeals for the 9th Circuit determined, in the context of an age discrimination claim under the Age Discrimination in Employment Act (ADEA), an age difference of less than ten years between the complaining employee and the employee receiving a promotion creates a rebuttable presumption the age difference was insubstantial. However, in this particular case, although the age difference was less than ten years, there was evidence the employer considered age in general to be significant in making promotion decisions, and thus the employee established a prima facie case of age discrimination.

New position
The Department of Homeland Security established a new program for its border patrol agents whereby Assistant Chief Patrol Agents were split into an administration category, with a lower pay grade, and an operations category, with a higher pay grade. A 54-year-old border patrol agent was one of 24 eligible candidates ranging in age from 38 to 54 years who applied for the operations category position with the higher pay grade. Based on his score on a competency assessment, the border patrol agent was one of 12 candidates selected for an interview, but was not selected for final consideration after the interview. Ultimately, four individuals were chosen for positions in the higher pay grade operations category ranging in age from 44 to 48 years old. The border patrol agent then sued the Department of Homeland Security, claiming the decision not to promote him to the operations position was age discrimination in violation of the ADEA.
The agency presented a nondiscriminatory reason for not promoting the border patrol agent, claiming he lacked leadership, judgment, flexibility, and innovation. In response, the border patrol agent presented evidence the supervisor who was involved in the decision not to recommend the border patrol agent after his interview said in a staff meeting he preferred “young, dynamic agents” for the new operations position, and another agent confirmed hearing this statement. The border patrol agent also testified the same supervisor had repeated retirement discussions with him, even though the border patrol agent expressed no interest in retiring from the agency. The trial court found this evidence was insufficient to rebut the agency’s nondiscriminatory reasons for not promoting the border patrol agent and dismissed the case.

Overcoming the presumption
Addressing the border patrol agent’s claims under the McDonnell Douglas burden-shifting framework, the U.S. Court of Appeals for the 9th Circuit first considered whether the agent established a prima facie case of age discrimination. In particular, the Ninth Circuit considered whether the individuals selected for the operations position, who were an average of eight years younger than the border patrol agent, were substantially younger than the agent. The Ninth Circuit adopted the Seventh Circuit’s rule there is a rebuttable presumption of insubstantial age difference where the difference is less than ten years. Thus, the Ninth Circuit determined the border patrol agent needed to show more than the eight-year average age difference to support his claim. The court found the border patrol agent’s testimony regarding the supervisor’s stated preference for promoting younger agents and the retirement discussions were sufficient evidence the agency considered age to be significant, thus rebutting the presumption created by the less than ten-year age difference.

The Ninth Circuit then accepted the agency’s stated legitimate, nondiscriminatory reasons for not promoting the border patrol agent as sufficient to shift the burden to the agent to show these reasons were pretext for discrimination. While the trial court found the supervisor’s discriminatory statements were not sufficient to rebut the agency’s stated nondiscriminatory reasons, the Ninth Circuit found the trial court erred by failing to consider that a speaker of discriminatory statements need not be the final decisionmaker of an employment decision. Here, the border patrol agent presented evidence of the supervisor’s influence, because: (1) the supervisor created the operations positions; (2) other interviewers deferred to the supervisor because he would supervise the promoted agents; and (3) the supervisor recommended the four finalists who were ultimately given the positions. Although other individuals made the final decisions, those individuals did not deviate from the supervisor’s recommendations. Thus, the Ninth Circuit found the supervisor influenced the hiring decisions, and his discriminatory remarks established a possibility of discrimination. Accordingly, the Ninth Circuit found the border patrol agent submitted sufficient evidence to warrant a trial on his claims.



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