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.

National Labor Relations Board Finds At-Will Clauses in Two Employee Handbooks Lawful

On October 31, 2012, the National Labor Relations Board (NLRB) Acting General Counsel released two advice memos that analyze at-will employment clauses in two employee handbooks. 

Charges filed with the NLRB alleged that the handbooks (one distributed by Rocha Transportation in California, the other by Mimi’s Café in Arizona) were too broad in their definitions of at-will employment and could reasonably lead employees to believe that they could not engage in activity protected by the National Labor Relations Act, such as forming or joining a union. 

Rocha Transportation’s employee handbook contained the following clause:  “Employment with Rocha Transportation is employment at-will.  Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will.  No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will.  Only the president of the company has the authority to make any such agreement and then only in writing.” 

The NLRB concluded that because this clause provides that the relationship can be changed, employees would not reasonably assume that their National Labor Relations Act rights are prohibited.  The Rocha Transportation advice memorandum can be accessed by clicking here. 

The Mimi’s Café employee handbook contained the following clause:  “The relationship between you and Mimi’s Café is referred to as ‘employment at will.’  This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company.  No representative of the Company has authority to enter into any agreement contrary to the foregoing ‘employment at will’ relationship…” 

The advice memo issued by the NLRB concludes that this clause is not unlawfully broad because it does not require employees to agree that the employee relationship cannot be changed in any way, but merely states that the employer’s representatives are not authorized to change it.  The Mimi’s Cafe advice memorandum can be accessed by clicking here.

These two advice memoranda distinguish the language in the Rocha Transportation and Mimi’s Cafe handbooks from another at-will clause that earlier this year was found by an NLRB Administrative Law Judge to be unlawfully broad.  See American Red Cross Arizona Blood Services Region, Case 28-CA-23443.  The American Red Cross at-will clause at issue in that case read as follows:  “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” 

In addressing this language, the Administrative Law Judge noted that “it is somewhat questionable as to whether that language expressly restricts Section 7 activity.  After all, the phrase in question does not mention union or protected concerted activity, or even the raising of complaints involving employees’ wages, hours and working conditions.  However, in my view there is no doubt that ‘employees would reasonably construe the language to prohibit Section 7 activity.’”  Id.  (internal citations omitted). 

These decisions illustrate the NLRB’s scrutiny of typical boilerplate at-will employment clauses and the NLRB’s efforts to protect rank-and-file employees’ rights to unionize or otherwise organize.  They also highlight the fact that the law in this area remains somewhat uncertain.  Indeed, the Associate General Counsel who authored the Rocha Transportation advice memo concluded by stating, “[b]ecause the law in this area remains unsettled, the Regions should submit to the Division of Advice all cases involving employer handbook provisions that restrict the future modification of an employee’s at-will status.”


Please feel free to contact me directly at (336) 333-6375 to discuss this case or other North Carolina employment law matters.  For more information about my Greensboro law firm of Sharpless & Stavola, please visit our website at www.sharpless-stavola.com.