Employers are finding it harder to get age discrimination cases dismissed early. They also are learning that beating age discrimination suits requires rock-solid evidence of fair and equal treatment—and a genuine, legitimate reason for discharging the employee that has nothing to do with age.
In discrimination cases, employees have to show they are qualified for the position in question, are a member of a protected class (i.e., age, sex or race) and were replaced by someone outside that protected class.
But employers can’t get these cases dismissed just by arguing thatdemonstrates the employee wasn’t qualified for the job. Courts consider the fact that the employee was hired and held the position as sufficient evidence that he or she was qualified.
Recent case: Philip Berquist, who was in his 50s and inherited by Washington Mutual when the company took over another financial institution, was laid off after a reorganization. He suspected age discrimination and sued.
Washington Mutual wanted the case dismissed early because, in its view, Berquist wasn’t qualified. It claimed he had problems with supervisors, who said his work was substandard. But the court said that was irrelevant in the early stages. Berquist was automatically “qualified” because he held the job—presumably the company didn’t hire unqualified employees.
Berquist lost the case anyway. He couldn’t show someone younger replaced him or that there was direct evidence of age discrimination. (Berquist v. Washington Mutual, No. 05-20956, 5th Cir., 2007)
Bottom line: Save the “unqualified” evidence for later in the process and don’t expect a quick dismissal. Increasingly, judges are reluctant to dismiss cases early on; they give employees every benefit of the doubt. Instead, concentrate on proving a legitimate business reason for your actions. That forces employees to prove that your legitimate reason was just a pretext to cover the real motive—discrimination based on membership in a protected class.