Age Discrimination Cases on the Rise in North Carolina Even as Courts Require Exacting Proof

Claims of workplace age discrimination have steadily increased in North Carolina and the nation at large in recent years.  According to EEOC filing statistics, there were fewer than 20,000 age discrimination charges filed during each of years 1997 through 2007.  There have been more than 22,000 age discrimination charges filed in each year since 2007, with more than 23,000 age discrimination charges filed in three of those five years. 

The upward trend is likely due to several factors.  For example, the combination of an expanding number of elderly workers from the large baby boomer population and a sputtering U.S. economy, which continues to result in downsizing by employers, has resulted in a large field of displaced older workers.  A changing work environment, which is increasingly reliant on relatively new technology and associated skills, also renders younger workers more attractive than veteran employees in some instances.  For these and other reasons, the growing incidence of age discrimination claims is likely to continue in coming years.

There are two basic methods to proving a case of age discrimination.  First, a plaintiff can present direct evidence of discrimination.  Direct evidence is evidence that proves discriminatory motive without the need for inference.  A classic example would be if an employer fired an employee and said, “I am firing you because you are too old.”  A manager’s note or email stating, “Smith is too old for the job; we need someone younger,” would qualify as direct evidence.  Rarely is such direct, “smoking gun” evidence available in this day and age.

The second method for proving discrimination is called the McDonnell-Douglas burden-shifting paradigm.  It involves a three step process.  First, the plaintiff must establish what is called a prima facie case of discrimination.  If this can be done, the employer must then come forward with a legitimate, non-discriminatory reason for the decision.  In response, the plaintiff must then present evidence sufficient to find the employer’s explanation is a pretext, or false excuse, and sufficient to conclude that discrimination was the true motive.

In order to establish the opening prima facie showing of discrimination, a plaintiff, must demonstrate that: (1) he is a member of a protected class, (i.e., over age 40); (2) he suffered adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or he was replaced by a substantially younger individual. 

In the age discrimination context, the prima facie case often times is not difficult to establish. In fact, older workers frequently meet all of the elements as a mere function of their age and experience.  A worker over 40 satisfies the protected class requirement.  An older worker who has been with an employer for many years presumably has been meeting the employer’s expectations for some time.  Additionally, the odds are that an older worker will be replaced by someone younger.  Thus, if a veteran employee suffers an adverse employment action, he or she is well on the way to satisfying the prima facie case of discrimination.

Nevertheless, successfully proving age discrimination under the McDonnell-Douglas framework is very difficult for several reasons.  For one, the vast majority of North Carolina workers are employed at-will, meaning the employer may fire the employee for any reason so long as it is not an illegal one.  The employer need only respond to the prima facie case of age discrimination by producing a single, legitimate, non-discriminatory reason for the challenged action.  Courts have repeatedly emphasized that the offered reason need not be a wise one, so long as it was a non-discriminatory reason that the employer truly believed.  The courts simply will not second guess the business wisdom of an employer’s personnel decision. 

There are other considerations that make age discrimination claims difficult to win.  The courts, for instance, have recognized that only the plaintiff’s performance at the time of the decision is relevant to assessment of the discrimination claim.  As such, an employee with twenty more years of stellar work performance could still fail to prove his case if work performance were poor at the time of the challenged decision.  Perhaps the most difficult proof aspect is that the plaintiff must ultimately prove that the employer was motivated by discriminatory intent.  Intent is a very difficult element to prove and requires skillful, experienced counsel well-versed in effective methods for proving offered excuses pretextual and developing persuasive evidence of discriminatory animus.  Overcoming the at-will employment presumption also demands skillful representation.  Frequently, we see age discrimination claims pursued by unrepresented, pro se litigants.  Such claims are almost sure to fail given the proof difficulties involved.

In fact, perhaps because of the growing number of age discrimination claims, courts have become increasingly demanding and exacting in the level of proof required of age discrimination plaintiffs.  A recent case from the Western District of North Carolina demonstrates this tendency of the courts, as well as the proof difficulties outlined above.  We will discuss this recent case in our next post as we continue our discussion of workplace age discrimination.