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Age discrimination in the US: employees must still show they were fired ‘because of’ age

Written by
FordHarrison LLP, nationwide U.S. law firm with a singular focus on HR law.
The US Sixth Circuit Court has rejected an attempt to relax the standard for demonstrating age discrimination, maintaining employees must show they were fired ‘because of’ their age, not just that it was a factor in the termination.

In Pelcha v. MW Bancorp, Inc., the Sixth Circuit Court recently held that ageist comments attributed to a bank’s CEO were insufficient evidence to support an employee’s claim that she was fired because of her age in violation of the Age Discrimination in Employment Act (ADEA). Two of the three statements in question related to another employee in her eighties, and the third was a statement that the bank should hire younger tellers. 

The bank presented evidence to show that it had fired the plaintiff for insubordination. A new manager had implemented a policy requiring employees to submit requests for time off in writing. The employee informed the manager that she was not going to fill out the request form because she did not have to. Even though the employee eventually relented and complied, she was fired for insubordination. The employee argued that the three age-related statements she had overheard proved that her age, 47, was a reason for her termination. 

The Sixth Circuit held that the employee’s evidence was legally insufficient based on the law. The court explained that the ADEA prohibits employers from terminating employees because of age.  

‘Meeting this ‘because of’ requirement is no simple task. Plaintiffs must prove by a preponderance of the evidence that age was the ‘but for’ cause of the challenged employer decision. This requires a showing that age was the determinative reason they were terminated; that is, they must show that age was the reason that the employer decided to act.’ 

After the Sixth Circuit decided the case in favour of the bank, the Equal Employment Opportunity Commission (EEOC) joined forces with the employee to ask the court to revisit its decision. According to the EEOC, the Sixth Circuit should not have required the employee to prove that her age was the sole reason for her termination. Instead, the EEOC argued that employees should only have to prove that age was a factor in the adverse decision. 

The Sixth Circuit denied the request for a new hearing and rejected the EEOC’s expanded view of causation under the ADEA.


Employers’ bottom line

To prevail in an age discrimination case, employees must still prove that age was the determinative factor, not just one of many factors. Although the EEOC was unsuccessful, employers should expect the EEOC to continue pushing the courts to interpret the law in ways that would make it easier for employees to prevail in age discrimination lawsuits. 

Frank L. Day Jr
FordHarrison LLP