Friday, January 20, 2012

Ninth Circuit Revives the Employee Friendly, Burden Shifting Standard Known as the McDonnell Douglas Test to Age Discrimination in Employment Act (ADEA) Summary Judgment Motions

With 11 percent-high unemployment rate in California an increasing number of older workers are being laid off and are competing for jobs with younger applicants.  In this economic climate, with the age-bias stereotypes that some older workers already confront, it is not surprising that the number of age discrimination complaints being filed is at a record high. However, the road from filing a complaint with the Equal Employment Opportunity Commission (EEOC) to winning a case is not easy under the Age Discrimination in Employment Act (ADEA).

The Age Discrimination in Employment Act protects individuals who are 40 years of age or older from employment discrimination based on age. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.  It has always been the plaintiff’s burden to prove discriminatory treatment in an ADEA claim.  Numerous frameworks have been established by the U.S. Supreme Court for proving discriminatory treatment.

Some of these frameworks are employee friendly, such as the McDonnell Douglas burden shifting framework. Under the McDonnell Douglas burden shifting framework, a plaintiff would first have to establish a prima facie case of discrimination. If successful, the burden of production shifts to the employer to articulate a legitimate non-discriminatory reason for its action. It is then the plaintiff’s task to demonstrate that the employer’s justification is merely a pretext for behavior actually motivated by discrimination. The McDonnell Douglas framework was initially applied to a Title VII mixed motive employment discrimination case. Since its inception in 1973, many federal courts adopted the framework to employment discrimination claims brought under other federal laws, including the ADEA.

Other frameworks make it tougher for plaintiffs to prevail, such as the “but for” test.  Under the “but for” test, a plaintiff must show by a preponderance of the evidence that the employer would not have acted that way it did but for the employee’s age. Under this test, the employer does not need to show that it would have made the same decision regardless of age.

In 2009, the U.S. Supreme Court in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), rejected the application of the employee friendly McDonnell Douglas framework to the ADEA and instead applied the “but-for” test. This decision was a victory for employers because the “but for” standard of causation is a far more stringent requirement than the mixed motive standard used in most discrimination cases.

Last week, with the Ninth Circuit’s decision in Shelley v. Geren, No. 10-35014 (9th Cir. Jan. 12, 2012), the pendulum began to slowly swing back to the employees’ side. The Ninth Circuit read Gross narrowly to apply only to cases that had already progressed to trial. The Court overturned the District Court’s decision to apply the employer friendly, strict “but-for” test to a motion for summary judgment in an ADEA claim. Instead, the Ninth Circuit held that in a mixed motive case, an employee friendly, burden-shifting test applies to a motion for summary judgment in an ADEA claim.

As a result, the McDonnell Douglas test, an employee friendly burden shifting standard, applies in the summary judgment phase and the Gross test, a strict “but for” standard, is left for the trial phase. Even though a small victory, this legal proof structure is a tool that will assist plaintiffs at the summary judgment stage so that they can have their day in court.