Ninth Circuit Permits use of “Burden-Shifting” Test over “But For” Standard in ADEA Case

An Army employee filed suit against the Secretary of the Army and the United States Army Corps of Engineers alleging violations of the Age Discrimination in Employment Act ("ADEA") after he was not interviewed and his applications for two promotions were denied. The lower court relied upon the newer Gross v. FBL Financial standard of determining causation in an ADEA case, and found that the employee could not demonstrate that “but for” his age, he would have been given the position(s).

The Ninth Circuit Court of Appeals, however, found that the lower court erred when it held that Gross applied in lieu of the former and long-standing McDonnell Douglas test for proving age discrimination. Based upon Gross, the employee must establish that but for his age, he would not have been subjected to the adverse employment action. Under McDonnell Douglas, the employee must establish a prima facie case of age discrimination, and then the burden shifts to the employer to demonstrate a legitimate non-discriminatory reason for the employment action, and finally, the burden shifts back to the employee to establish that the proffered reason was merely pretext.

The Court, like the First, Second, and Third Circuit Courts of Appeal have found before it, that Gross did not abrogate McDonnell Douglas, but instead, held that an employee could rely upon the long-standing burden-shifting test to defeat summary judgment. When applying that test to the facts at issue, the Court determined that because the employee was able to establish that he was 54 years old at the relevant time, was qualified for the positions, was denied both positions, and the positions were given to substantially younger candidates, he could proceed on his claims at trial.

All employers must make an adverse employment action at one time or another, whether it is termination, demotion, suspension, or simply not choosing someone for a promotion. Employers must exercise caution to ensure that only legitimate, non-discriminatory, non-retaliatory factors are considered when making such decisions.