A Federal Court Just Made it Harder to Prove Age Discrimination at Work, Did it Go Too Far?
Posted: February 16, 2021
Recently, the Sixth Circuit Court of Appeals (Ohio, et al) issued an opinion in a case involving a bank employee who claimed that her former employer fired her because of her age in violation of the Age Discrimination in Employment Act (ADEA).
Sixth Circuit: Age bias means age must be the sole reason for an employment decision
Indeed, the ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
Now, the facts of this case (Pelcha v. MW Bancorp Inc.) do not really matter for this post. Our focus here will be on those two words in the ADEA: "because of." That is, the appellate court concluded that "because of" in the ADEA means that a plaintiff must prove that her age was the sole reason that the defendant took some sort of adverse employment action against her. In the court's words, a plaintiff "must show that age was the reason why [she was] terminated, not that age was one of multiple reasons." (emphasis added)
Or, as the court put it another way, "either a termination is motivated by age, or it wasn't."
Applying this "sole cause" test, a three-judge panel from the Sixth Circuit concluded that the plaintiff was unable to prove that her age motivated the defendant to fire her.
Did the Sixth Circuit unfairly raise the bar too high?
In 2008, the Supreme Court in Gross v. FBL Financial Services concluded that a plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action.
Got that? "Because of" and "but for" mean the same thing.
The Equal Employment Opportunity Commission (EEOC) and AARP/NELA have since made a similar argument in an attempt to convince the entire Sixth Circuit to revisit and overrule the three-judge panel's decision. These groups argue that age must have "a determinative influence on the outcome," but need not be the only reason why an employer took an adverse employment action.
The amici cite the Supreme Court's recent decision in Bostock v. Clayton County. Bostock is a Title VII of the Civil Rights Act of 1964 (Title VII) case; it has nothing to do with age discrimination. However, the Supreme Court did address whether Title VII's language prohibiting workplace discrimination "because of" sex requires plaintiffs to show that sex was the sole cause of an employment action. In discussing this standard, the Bostock Court noted that "[o]ften, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision."
And "sole factor" does not seem to apply to ADEA cases either. Indeed the Sixth Circuit is the only federal appellate court to have concluded as much.
The "sole factor" test sets a really high bar for plaintiffs to eclipse to prove age discrimination. Still, the "but-for" test is no walk in the park for a plaintiff.
As the Sixth Circuit has said previously, "[i]n practice, a plaintiff will rarely discover objective evidence of her employer's state of mind or internal motivations that would satisfy this extremely heavy burden. The plaintiff must instead resort to conjectural inquiry of the employer's thoughts and purposes, which the employer can simply and succinctly reject by offering a myriad of other subjective reasons for her termination."
But, win or lose, litigation is costly. So, do not give an employee any reason to believe that age factored into your decisionmaking in any way.
Posted In: Discrimination, Illegal; Title VII of the Civil Rights Act of 1964 (Title VII); U.S. Supreme Court
Want to know more? Read the full article by Eric B. Meyer at The Employer Handbook