- A Puerto Rico-based subsidiary of a global pharmaceutical manufacturer didn't violate federal age discrimination laws when it moved a younger woman into a newly consolidated position, leaving an older, male worker without a job (Zabala-De Jesus, et al v. Sanofi-Aventis Puerto Rico, Inc. et al No. 18-1852 (1st Cir. May 13, 2020)).
- Hector Zabala-De Jesus was transferred when the company lost the patents for the three products he managed. In his new job as senior marketing manager of the specialty business unit, Zabala handled products that comprised 18% of the company's marketing budget. That unit was then consolidated with another unit, leaving Zabala, who was 55, without a job, as a 44-year-old woman was chosen for the consolidated senior marketing manager position. Zabala sued, claiming age discrimination.
- The district court awarded summary judgment to Sanofi. The appeals court affirmed and said Sanofi had put forth a legitimate, nondiscriminatory reason for its decision to terminate Zabala's employment that a jury could not have construed as pretext for discrimination, given the evidence. The court said the woman's past experience with diabetes products, which represented 80% of the company's sales revenues in 2013 when the consolidation was proposed, and strong recent performance reviews made her more qualified to fill the new post than Zabala.
The Age Discrimination in Employment Act (ADEA) prohibits age-based discrimination against employees age 40 and older. But, as this case illustrates, employers have strong defenses when they can show a legitimate, nondiscriminatory reason for an adverse employment actions against older workers.
A December 2019 report from AARP found that age discrimination is widespread, tolerated and seen as the "last acceptable bias." That finding is supported by another study – the 2019 Hiscox Ageism in the Workplace Study which reported that more than 20% of employees over 40 say they have experienced workplace age bias.
Large employers are particularly guilty of ageism because of the perception that the laws that protect older workers are significantly weaker than those banning other types of discrimination, AARP said. There have been several instances of large employers paying big settlements to end age bias claims in recent years. PwC agreed to pay $11.6 million and change its recruiting practices to settle a claim that its targeting of recent college grads amounted to age discrimination. Google agreed to pay $11 million to settle class action allegations that it engaged in age discrimination for several U.S. positions.
In Zabala, the court mentioned that an employee who brings an ADEA claim must prove that age discrimination was the "but for" cause of the adverse employment action. That legal standard was established by a 2009 U.S. Supreme Court case that scrapped an existing "mixed motive" standard for the "but for" legal standard. Critics said the "but for" standard would make it harder for plaintiffs to prove age discrimination. Congressional lawmakers introduced a bipartisan bill earlier this year, the Protecting Older Workers Against Discrimination Act, that would reinstate the "mixed motive" standard. The U.S. House of Representatives approved the bill this winter. The Senate has not taken action on the proposed legislation.
Legal experts say employers can set themselves up for age bias claims when they reorganize and terminate or layoff those making more money, who tend to be more senior, and that HR should thoroughly document everything in case a legal defense is needed.