Proving Pretext in Age Discrimination Claims
A jury found that Seattle Central Community College (“SCCC”) did not wrongfully discriminate against 73-year old administrator Joan Ray because of her age, according to an article posted on Capitol Hill Seattle Blog. Ray had filed an age discrimination lawsuit against SCCC when it did not renew her contract and replaced her with a younger administrator. The college argued that budget cuts forced it to consolidate positions and that the younger administrator was more qualified for the new position. The jury found that SCCC’s actions were justified in this case, but sometimes an employer’s stated reason is merely pretext for discrimination.
Age discrimination is prohibited under both the federal Age Discrimination in Employment Act (“ADEA”) and Washington Law Against Discrimination (“WLAD”). Under these laws, if a person is at least 40 years old, an employer cannot discriminate against that person because of his or her age. Two major forms of age discrimination are adverse employment actions (such as firing or refusing to hire a person) and workplace policies that harm older employees. With both forms, the important issue is whether the employer is motivated by discrimination or by legitimate business reasons.
Adverse Employment Actions
Both the ADEA and the WLAD allow an employer to take adverse employment action against older employees if it is for a legitimate, nondiscriminatory reason. In some cases, though, it is difficult to know tell if the employer’s reason is legitimate or an attempt to justify discrimination. The reason may be pretext if it meets the following test:
1. The facts do not support the employer’s stated reasons
2. Even if the reasons were supported by the facts, the employer was not motivated by them
3. The reasons were not sufficient to motivate the employer’s act
For example, imagine that a marketing firm hired 29-year old Bobby instead of 57-year old Joe for an entry-level position. The firm stated that it hired Bobby because he had more marketing experience. For his age discrimination claim, Joe might be able to prove pretext in a few ways. First, he could show that his experience was equal to or greater than Bobby’s. Second, even if Bobby did have more experience, Joe may be able to show that the firm was not motivated by that reason. Finally, Joe might also be able to show that for an entry-level position, Bobby’s experience was not enough to justify the firm’s hiring decision.
Harmful Workplace Policies
Under the ADEA and WLAD, workplace policies that negatively impact employees who are 40 or older are unlawful discrimination unless they are based on a reasonable factor other than age (“RFOA”). A policy is based on an RFOA if it is reasonably meant and used to achieve a legitimate business goal. In determining whether a factor is reasonable, look at:
-How much the factor relates to the employer’s reasons for adopting the policy
-If the employer defines and applies the factor in a fair and accurate manner
-How much discretion supervisors and managers have to rely on subjective criteria
-How much the employer analyzed the policy’s negative impact on older employees
-Whether the employer balanced the harm to older employees with the cost and difficulty of minimizing that harm
With both adverse employment actions and harmful workplace policies, employers may try to justify unlawful discrimination by offering seemingly legitimate reasons. Where an employee needs to prove that those reasons are pretext for discrimination, an employment attorney can help.