Age Discrimination and the Shifting Burden of Proof

By Marc Zimet. Esq. of Jampol Zimet, LLP As all too many employers know, discrimination claims can arise in many shapes and forms, and can be challenging to defend due to presumptions in favor of the employee. Understanding what an employer must prove to effectively defend age discrimination claims is crucial to combat a recent wave of age discrimination claims. Under both California’s Fair Employment and Housing Act (FEHA) and the Age Discrimination in Employment Act of 1967 (ADEA), it is unlawful for an employer to subject an employee to adverse employment action due to their age. This rule applies to individuals over 40 years of age. Furthermore, it is unlawful for an employer to prefer an employee of younger age over an employee of older age (though it is not unlawful for the employer to favor an older employee over a younger employee [see General Dynamics Land Sys., Inc. v. Cline (2004) 540 U.S. 581]). In California, FEHA is intended to maximize protections available to employees. Because it offers broader protections than the ADEA, employees most often pursue remedies under FEHA. FEHA only applies to employers of 5 or more employees and can create liability in an employer, including punitive and emotional distress damages, for age discrimination. However, under FEHA there can be no individual supervisor liability for discrimination, absent a claim of harassment. California has adopted the Supreme Court’s McDonnell Douglas three-stage burden shifting test for addressing the burden of proof in age discrimination claims. The McDonnell Douglas test initially places the burden of proving prima facie age discrimination on the plaintiff. If a prima facie case can be shown, the burden then shifts to the employer to offer a legitimate, non-discriminatory, reason for the challenged employment action. If the employer meets this burden, the burden then shifts back to the plaintiff to prove that the purportedly non-discriminatory action was in fact a pretext for a discriminatory action. In the first phase, the plaintiff-employee who believes they have been discriminated against based upon their age has the burden of demonstrating a prima facie case of discrimination, either through direct or circumstantial evidence. Once a plaintiff proves this, a rebuttable presumption is created in favor of the plaintiff that the employer unlawfully discriminated against the plaintiff. However, direct evidence in age discrimination cases is rarely available. As such, plaintiffs most frequently rely upon circumstantial evidence to prove their case. In proving a prima facie case of age discrimination, the plaintiff must allege evidence such that a reasonable inference of age discrimination arises. The plaintiff’s prima facie case is proven by circumstantial evidence where: (1) at the time of the adverse action he or she was 40 years of age or older, (2) an adverse employment action was taken against the employee, and (3) at the time of the adverse action the employee was satisfactorily performing his or her job. If the plaintiff-employee establishes a prima facie case, the burden then shifts to the defendant-employer. In response, the employer must articulate a legitimate reason for the action challenged by the employee that is not discriminatory. At trial, where an employer is able to provide admissible evidence that the challenged employment action was taken for legitimate reasons that raises a genuine issue of fact sufficient to justify a judgment for the employer, the presumption in favor of the employee is rebutted and the burden once again shifts back to the plaintiff. With the burden back upon the plaintiff, she must prove that the reason advanced by the employer constitutes mere pretext for discrimination. In order to discredit the employer’s proffered legitimate nondiscriminatory reasons for the challenged employment action, the plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s reasons that a reasonable fact finder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted reasons. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4Th 297.) The plaintiff’s evidence must at this point be strong enough to overcome the employer’s explanation. Weak evidence will not meet this burden and may be subject to a motion for summary judgment. The probative value of plaintiff’s evidence must be strong enough to overcome any innocent reasons given by the employer for the action taken. (Guz v. Bechtel Nat’l, Inc.(2000) 24 Cal.4th 317, 362.) As demonstrated here, once an employer effectively rebuts the presumption and shifts the burden back upon the plaintiff, a major hurdle is overcome which is essential to the employer’s defense. Discrimination claims, and age discrimination claims in particular, are complicated and represent a complex area of the law that can be difficult for many to navigate. In depth knowledge in this area of the law is essential to understanding procedures, burdens, and the evidence necessary to rebut presumptions in favor of the employee and present a strong case.

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Age Discrimination and the Shifting Burden of Proof

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