Too Old to Work, but Not Old Enough to Sue

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Imagine a woman who just turned 40 years old.  That same week, she was demoted from a commission-based sales clerk to a desk job.  Her salary suffered as a result, and she found out that the position she once held was filled by a younger-looking 35-year-old woman who was bringing in the same commission each week as the 40-year-old woman. The two women were similar in every aspect of their job performance and ability in the sales clerk job. At first glance, it would seem like there is a possibility for an age discrimination lawsuit.  However, a growing consensus among circuit courts may destroy the hopes of litigants, dismissing an age discrimination claim if there is not an age difference of ten or more years between the plaintiff and their replacement hire.

What Does “Substantially Younger” Really Mean?

The Age Discrimination Employment Act of 1967 (ADEA) established that it is unlawful for an employer to “fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual’s age[.]”  In all, the Act prohibits employment discrimination against persons 40 years of age or older.  However, in the 29 years following the passage of the ADEA, courts have struggled with what it means to be discriminated against based on age. Did a litigant satisfy the prima facie requirements if they were 40 and the individual that replaced them was 39? Is there enough of an age gap to demonstrate discrimination?  What would happen if a 78-year-old was replaced by a 42-year-old?  The 78-year-old and the 42-year-old are both in the protected class, so could there even be a claim of age discrimination?

The U.S. Supreme Court attempted to clarify the confusion surrounding the law in its 1996 opinion, O’Connor v. Consolidated Coin Caterers Corporation.  Here, 56-year-old O’Connor was fired by Consolidated Coin Caterers Corporation and replaced by a 40-year-old worker.  The Court of Appeals affirmed the District Court’s decision to dismiss O’Connor’s age discrimination claim.  It found that O’Connor failed to establish that he was discriminated against because he was replaced by someone within the protected age group by the ADEA.  The U.S. Supreme Court disagreed, finding that a more reliable indicator of age discrimination is not class membership, but whether the replacement is “substantially younger than the plaintiff.”

But what does “substantially younger” mean?  The U.S. Supreme Court has yet to offer further guidance, so lower courts have been left to solve this issue independently.  Courts have hesitated to establish a bright-line rule; instead, they tend toward case-by-case determinations.

The Emerging Trend in Other Circuit Courts

 In 2019, the Fourth Circuit Court of Appeals, the circuit in which North Carolina resides, addressed the issue in Westmoreland v. TWC Administration LLC.  Here, the court established that an age difference of 24 years between a 61-year-old woman and her 30-year-old replacement satisfied the substantially younger requirement.  This decision was only ten years after the Fourth Circuit Court of Appeals established that a 19-year age gap qualified as substantially younger.  While there is no bright-line rule in the Fourth Circuit, the court seems to follow that 10 years or more between the Plaintiff and the individual hired as their replacement is enough of an age gap to prove age discrimination.

While the Fourth Circuit may not have established a bright-line rule, circuit courts across the country are starting to develop jurisprudence on what “substantially younger” means.  For example, it has been generally held by circuit courts, including the Fourth Circuit, that an age difference of ten or more years is sufficiently substantial, but an age difference of fewer than ten years is not.  This has been the case in the Sixth, Seventh, Ninth, and Tenth Circuits.  But even in these circuits, the courts seem to exercise broad discretion when determining when the ten-year age gap requirement applies.

This discretion can be seen in Sixth Circuit case law. For example, in Grosjean v. First Energy Corporation, a Sixth Circuit Court of Appeals case from 2003, the Court cites a plethora of case law affirming that the “age differences of ten or more years [has] generally been held to be sufficiently substantial to meet the requirement of . . . age discrimination prima facie case.”  There are still additional requirements to satisfy a prima facie case of age discrimination, the Sixth Circuit cites 35 cases supporting the ten-year difference requirement and 26 cases showing support for the rule that a difference of fewer than ten years is insufficient to be considered substantially younger.  While the Sixth Circuit does not have a bright line established the precedent of over 60 cases bookending the ten-year age difference requirement would seem to establish guideposts for what substantially sufficient truly means. Yet, nine years later in Blizzard v. Marion Technical College, the same Sixth Circuit Court of Appeals found that, while a six-and-a-half-year age difference was not the plaintiff’s best evidence to create an inference of age discrimination, it was enough to get her past a motion for summary judgment.

However, the Seventh Circuit adopted a bright-line rule in Hartley v. Wisconsin Bell, Inc.  This case “consider[ed] a ten-year difference in ages (between the plaintiff and [their] replacement) to be presumptively ‘substantial’ under O’Connor.”  In Hartley, the court provided that in “cases where the [age] disparity is less, the plaintiff still may present a triable claim if [he or she] directs the court to evidence that [his or] her employer considered [his or] her age to be significant.”  Similar to the Sixth Circuit, the Seventh Circuit allows for judicial discretion if the case’s specific facts provide evidence that an individual within the protected ADEA class was discriminated against based on age.

A Bright-line Rule for Age Discrimination May Not Be the Best Option.

There are benefits to establishing a bright-line rule in discrimination-based litigation. By establishing a ten-year age difference rule, courts can better ensure judicial economy. Such a rule would help eliminate frivolous age discrimination cases, and thereby save the court time and resources. The bright-line rule would also save litigants’ court costs by knowing at the start of litigation if their case would make it past summary judgment.

While a bright-line rule may offer significant advantages to age discrimination litigation, it takes away from a crucial aspect: the affected person.  Relegating an individual merely to the age difference between themselves and those hired after them removes the judicial fact-finding that litigants deserve.  The bright-line rule takes away the opportunity for plaintiffs to make their case before a court to best convey how their age impacted their employer’s or potential employer’s decision to fire, demote, or not hire them. With a bright-line rule such as this, an employee would not even receive the dignity of discovering their employer’s non-pretextual reason for their actions.  They would be dismissed outright.  This bright-line rule would also allow employers to discriminate based on age, as long as they hired someone less than ten years younger than their previous employee, providing employers with a clear loophole.

If circuit courts instead chose to adopt ten years or more as a reference point for what is considered substantially younger, they could balance judicial economy with respect for each individual plaintiff.

At the end of the day, while a bright-line rule may be in the best interest of the judicial economy, it takes away the individualism of a discrimination claim.  At the core of each claim is a person who has been demoted from a job they were dedicated to simply because they got older.  There is a person who was looked over time and time again for a promotion because a younger individual was applying for the same position.  They are stuck in a cycle where they are too old to work but too young to sue, with no legal remedy for the discrimination they have suffered.