Age Discrimination and Pretextual Firing of Older Workers in Recent Years

Pretextual firing occurs when an employer terminates an employee for a reason that is not the true reason for the termination. One of the most common forms of pretextual firing is the discrimination of older workers, also known as age discrimination. Age discrimination in the workplace is a persistent problem that has received significant attention in recent years.

The United States Equal Employment Opportunity Commission (EEOC) reports that age discrimination claims have been on the rise in recent years, with over 20,000 charges filed in 2020 alone. Older workers are often subject to negative stereotypes, including that they are less productive or less able to learn new skills. As a result, they may be passed over for promotions, training opportunities, and job openings. When older workers are terminated, it may be due to their age rather than their job performance or conduct.

This article will examine the issue of pretextual firing of older workers in recent years. The article will explore the legal background surrounding age discrimination in the workplace, including relevant Supreme Court cases and federal cases from New York and California. Additionally, the article will discuss how older workers can prove age discrimination, the impact of pretextual firing on older workers, and the legal remedies available to older workers who have been subject to age discrimination. Ultimately, this article aims to provide insight into the prevalence of age discrimination in the workplace and the remedies available to older workers to protect and/or seek vindication of their rights.

Legal Background

Age discrimination in the workplace is prohibited under the Age Discrimination in Employment Act (ADEA) of 1967. 29 U.S.C. § 621 et seq. The ADEA protects individuals who are 40 years of age or older from employment discrimination based on their age. In order to establish a prima facie case of age discrimination, a plaintiff must show that (1) he or she is a member of the protected age group, (2) he or she was qualified for the position in question, (3) he or she suffered an adverse employment action, and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Age discrimination in the workplace has long been an issue, and older workers have historically been subject to unfavorable treatment in comparison to their younger counterparts. Despite advancements in equal employment opportunity laws, older workers continue to face discrimination, and pretextual firings are a common method of masking discriminatory actions. This article delves into recent legal cases from the Supreme Court and federal cases from New York and California concerning pretextual firings of older workers.

Gross v. FBL Financial Services, Inc.

The Supreme Court in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), addressed the issue of burden of proof in age discrimination cases. This case clarified the burden of proof in ADEA cases. A pivotal question asked in this case was whether a plaintiff needs to submit direct evidence of discrimination filed under the ADEA for the burden of proof to shift to the employer. The court held 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. The court continued that the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that adverse employment decision.

This means that the plaintiff must prove that they would not have been terminated but for their age. The court reiterated the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act, citing Hazen Paper Co. v. Biggins, 507 U. S. 604, 610.

It should be noted that prior to the Gross case, claims under the ADEA were analyzed under the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Note however, that Retaliation claims under the ADEA continue to be analyzed under the McDonnell Douglas burden-shifting test.

Reeves v. Sanderson Plumbing Products, Inc.

In 2000, the Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) dealt with the issue of pretextual firing. The Reeves Court held that a plaintiff may prove discrimination through evidence of pretext, meaning that the employer’s stated reason for the adverse employment action was not the true reason. The Court emphasized that a plaintiff must present “specific and substantial” evidence to support their claim of pretext. The court nevertheless held that a plaintiff may survive summary judgment by presenting evidence that the employer’s proffered reason for an adverse employment action is pretextual, even if the evidence is not sufficient to prove discrimination by a preponderance of the evidence. (Reeves, 530 U.S. at 147). The court thus believed in that case, that the plaintiff had presented sufficient evidence of pretext to proceed to trial.

Federal cases from New York and California have also addressed the issue of pretextual firing of older workers. In New York, the state’s Human Rights Law prohibits employment discrimination based on age. N.Y. Exec. Law § 296 (McKinney 2021).  In 2021, the Second Circuit Court of Appeals held in Karlo v. Pittsburgh Glass Works, Inc., 999 F.3d 58 (2d Cir. 2021), that a plaintiff may establish a pattern or practice of discrimination by presenting statistical evidence showing a significant disparity in the treatment of older workers. (Karlo, 999 F.3d at 72).

Similarly, in California, the state’s Fair Employment and Housing Act (FEHA) prohibits discrimination based on age. Cal. Gov’t Code § 12940(a) (West 2021). In Reid v. Google, Inc., 50 Cal. 4th 512 (2010), the California Supreme Court held that a plaintiff may establish a prima facie case of age discrimination by showing that the employer subjected the plaintiff to an adverse employment action and that the plaintiff was replaced by someone outside the protected class. (Reid, 50 Cal. 4th at 527).

These cases have highlighted the importance of proving age discrimination and the impact of pretextual firing on older workers. In the following sections, we will explore how older workers can prove age discrimination and the legal remedies available to them.

Proving Age Discrimination

Proving age discrimination can be a challenging task for older workers who have been terminated from their jobs. However, there are legal guidelines that can be followed to strengthen the case of age discrimination. It will behoove an employee who “smells” an impending adverse job action to seek legal counsel, even before the job action occurs.

Gorzynski v. JetBlue Airways Corp.

Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2010) is a federal case from Second Circuit of New York that highlights the importance of circumstantial evidence in proving age discrimination. The plaintiff in this case, a 58-year-old pilot, was terminated and replaced by a younger pilot. The plaintiff argued that the employer’s stated reason for the termination was a pretext, and that the true reason was age discrimination. The plaintiff presented circumstantial evidence, including comments made by supervisors about his age, which supported his claim of age discrimination. The Second Circuit Court of Appeals made it clear that an employee can prove pretext by showing that the employer’s proffered reasons for termination were not credible or that they were inconsistent with the employer’s actions or statements. The language of the Second Circuit is very helpful. The court stated:

“Given the cumulative weight of this evidence, we believe that a reasonable juror could find, not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with …, it was her age that was the “but for” cause of Gorzynski’s termination. Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.” (Gorzynski, 596 F.3d at 109)

O’Connor v. Consol. Coin Caterers Corp.

O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996), is a federal case from California that emphasized the importance of a “convincing mosaic” of circumstantial evidence in proving age discrimination. The plaintiff in this case, a 56-year-old manager, was terminated and replaced by a younger manager. The plaintiff presented circumstantial evidence, including comments made by the employer about his age and the ages of other terminated employees, which supported his claim of age discrimination. The court held that the evidence presented by the plaintiff created a “convincing mosaic” of age discrimination. the Supreme Court held that an employer’s reliance on age as a factor in an employment decision, even if not the only factor, is sufficient to establish a violation of the ADEA. (O’Connor, 517 U.S. at 313-14.)

Guidelines for Proving Age Discrimination

To prove age discrimination, the plaintiff must first establish a prima facie case of discrimination. This requires the plaintiff to show that they were over 40 years old, qualified for the position, and suffered an adverse employment action. Prior to the Gross case, supra, once a prima facie case has been established, the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the adverse employment action. This is no longer the case.

The burden of proof always remains with the plaintiff in ADEA cases.

Proof of age discrimination by the plaintiff/former employee can be done by presenting circumstantial evidence, such as comments made by supervisors about age, statistical evidence of age discrimination, and evidence of differential treatment based on age.

Proving age discrimination requires a careful analysis of the evidence presented by the plaintiff. Federal cases such as Gorzynski and O’Connor provide guidance on the importance of circumstantial evidence in proving age discrimination. By following the legal guidelines for proving age discrimination, older workers can protect their rights and seek legal remedies for pretextual firing.

Pretextual Firing of Older Workers

Pretextual firing refers to the situation where an employer provides a false reason for terminating an employee in an effort to mask the true discriminatory reason. Under the Age Discrimination in Employment Act (ADEA), it is illegal for an employer to discriminate against an employee based on their age. However, employers often provide pretextual reasons to justify their actions, making it challenging to prove age discrimination.

In Gross, supra, the Supreme Court held that plaintiffs must prove that age was the “but-for” cause of the adverse employment action. In other words, the plaintiff must prove that their age was the primary reason they were fired. The ruling places a heavier burden of proof on plaintiffs than other anti-discrimination laws, making it more challenging to prove age discrimination. The Gross Court made it clear that “the burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Further, the court stated that “Title VII is materially different with respect to the relevant burden of persuasion, this Court’s interpretation of the ADEA is not governed by Title VII decisions such as Price Waterhouse…”

The Gross Court slammed the door shut on any possible application of the Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) burden-shifting principles to ADEA cases by stating that the “Court has never applied Title VII’s burden-shifting framework to ADEA claims and declines to do so now.” The Court decision was based in part on its reading of the plain meaning of the statute’s “because of” phrase, and because the 1991 Civil Rights Act amended only Title VII and not the ADEA with respect to mixed-motives claims. Practitioners should carefully read Justice Breyer’s dissenting opinion that strongly argues that mixed-motive instructions are appropriate in ADEA cases, especially since Price Waterhouse had already interpreted “because of” and stated that to “construe the words “because of” as colloquial shorthand for “but-for causation,” as does Price Waterhouse, is to misunderstand them.” (Price Waterhouse 490 U.S. at 240).

However, the Supreme Court also held in Reeves v. Sanderson Plumbing Products, Inc. that a plaintiff can prove discrimination through circumstantial evidence. If the employer has a pattern of firing older workers, it may be evidence of discrimination. This means that if an older worker can establish a pattern of discriminatory conduct by the employer, it may be easier to prove age discrimination.

Impact Of Pretextual Firing On Older Workers

Pretextual firing of older workers can have a significant impact on their lives and well-being. Older workers are often targeted for pretextual firing due to age discrimination, which can lead to negative consequences for the workers affected.

One major impact of pretextual firing is the psychological toll it can take on older workers. Being terminated from a job can lead to feelings of loss, anxiety, and uncertainty, particularly if the worker had been with the employer for many years. Older workers who are terminated may also experience a sense of betrayal, especially if they feel that their employer had promised them job security.

In addition to the psychological effects, pretextual firing can have long-term effects on the financial stability of older workers. Losing a job can result in a significant loss of income, which can make it difficult for older workers to maintain their standard of living. Pretextual firing can also make it challenging for older workers to find new employment, particularly if they are facing age discrimination in the job market. This can lead to long-term financial insecurity and hardship.

Finally, older workers who are terminated may face challenges in finding new employment that is comparable to their previous job. Age discrimination in the job market is a pervasive problem, and older workers may find that they are passed over for jobs in favor of younger candidates. This can result in a long period of unemployment or underemployment, which can lead to financial and emotional strain.

Pretextual firing of older workers can have a significant impact on their lives and well-being. Employers must recognize the impact of age discrimination and the importance of treating all employees fairly and with respect. By following anti-discrimination laws and creating a culture of inclusivity and fairness, employers can help to mitigate the negative impact of pretextual firing on older workers. Besides, the incredible brain drain in letting go of older workers inures to the detriment of organizations in terms of costs in the long run.

Legal Remedies For Pretextual Firing Of Older Workers

If an older worker believes that they have been terminated from their job as a result of age discrimination, they may have legal remedies available to them. One of the first steps that an older worker can take is to file a charge with the Equal Employment Opportunity Commission (EEOC). The EEOC is responsible for investigating claims of discrimination in the workplace and can provide guidance on how to proceed with a claim.

If the EEOC finds that there is evidence of discrimination, they may file a lawsuit on behalf of the older worker. Alternatively, the older worker may choose to file a lawsuit themselves. In either case, there are several legal remedies available to older workers who have been subjected to pretextual firing.

One remedy that may be available to older workers is back pay. Back pay is the amount of money that the worker would have earned if they had not been terminated. This can include lost wages, benefits, and other forms of compensation. If the older worker is successful in their lawsuit, they may be entitled to back pay for the period of time that they were unemployed.

Another potential remedy is reinstatement. Reinstatement means that the older worker is given their job back. This can be an important remedy for older workers who may have a difficult time finding new employment. If the older worker is successful in their lawsuit, they may be entitled to reinstatement with their former employer.

Compensatory damages may also be available to older workers who have been terminated as a result of age discrimination. Compensatory damages are intended to compensate the worker for any emotional distress or other non-economic harm that they may have suffered as a result of their termination. These damages may include compensation for pain and suffering, humiliation, and loss of reputation.

Finally, older workers who have been subjected to pretextual firing may be entitled to liquidated damages. Liquidated damages are a form of compensation that is designed to punish the employer for engaging in discriminatory behavior. The amount of liquidated damages that an employer may be required to pay will depend on the specific circumstances of the case.

Older workers who have been terminated as a result of age discrimination may have legal remedies available to them. These remedies may include back pay, reinstatement, compensatory damages, and liquidated damages. By seeking legal recourse, older workers can hold their employers accountable for engaging in discriminatory behavior and seek compensation for the harm that they have suffered as a result of their termination.

Conclusion

In recent years, the pretextual firing of older workers has become a growing concern in the workplace. This issue is significant, as it not only affects the lives and livelihoods of older workers but also has a broader impact on society as a whole.

Throughout this article, we have explored the legal background of the Age Discrimination in Employment Act (ADEA) and key court cases that have shaped the legal landscape surrounding age discrimination in the workplace. We have also discussed how older workers can prove age discrimination and the impact of pretextual firing on their financial stability and employability.

Fortunately, legal remedies are available for older workers who have been the victims of pretextual firing, including filing a charge with the EEOC and seeking remedies such as back pay, reinstatement, and compensatory damages. Liquidated damages may also be available in some cases.

It is important to ensure that older workers are given equal employment opportunities and are not subjected to discrimination in the workplace. Employers must be held accountable for their actions and be aware of the legal consequences of age discrimination.

The pretextual firing of older workers is a serious issue that requires attention and action. By providing legal remedies and holding employers accountable for their actions, we can work towards a more fair and just workplace for all employees, regardless age.