- A university's decision to offer a "much younger" professor a program director position did not prove another professor's age discrimination claim, the 2nd U.S. Circuit Court of Appeals ruled (McEvoy v. Fairfield University, No. 19-cv-3924 (2nd Cir., Feb. 17, 2021)).
- Connecticut's Fairfield University decided not to renew a professor's appointment as director of its pre-law advisory program. The professor sued, claiming age discrimination, after the university gave the position to a younger person.
- The court noted that the only evidence of age discrimination the professor presented on was that her replacement was much younger. In his deposition, a decision maker described McEvoy as "traditional" and the pre-law program as "antiquated." But the appeals court found these statements to point to perceived issues with the program rather than the professor's age.
The Age Discrimination in Employment Act forbids discrimination based on age against applicants and employees age 40 and older. Employers can't take into account a legally protected characteristic such as a person's age "when making decisions about discipline or discharge," according to the U.S. Equal Employment Opportunity Commission.
The appeals court noted that a plaintiff bringing a disparate treatment claim under the ADEA must prove, by a preponderance of the evidence, that age was the "but for" cause of the challenged adverse employment action. This legal standard comes from a 2009 U.S. Supreme Court ruling, Gross v. FBL Financial Services, Inc. Democrats have attempted to replace the standard. The U.S. House of Representatives voted last year to change the legal requirement to one that proponents say would make it easier to prove age bias in the workplace, but the bill didn't get far when introduced in the U.S. Senate.
Although the decision maker's statements in this instance weren't viewed as ageist by the court, HR professionals should take note that manager and supervisor comments can land employers in hot water. In one instance, a 58-year-old employee whose 52-year-old supervisor allegedly made multiple negative comments about her age was allowed to move forward with her age bias claim.