Generally, older employees who are turned down for promotions or aren’t hired must show that the person who was hired was younger. But how much younger? That question has now been answered by the 9th Circuit Court of Appeals.
If the difference is 10 years or more, there is a rebuttable presumption that age discrimination was at work.
The employer will have to show a legitimate reason for the decision to hire someone younger. If the age difference is less than 10 years, the presumption goes the other way—the decision is presumed to have been nondiscriminatory and the employee has to show why that presumption is wrong with other age discrimination evidence.
Recent case: John worked as a border control officer and was 54 years old when he applied for an open position to a GS-15 pay grade.
Twenty-four other employees applied, all younger than John. The top four candidates were 44, 45, 47, and 48 years old, an eight-year average difference.
The court said that under its new rule, it presumed that no age discrimination was involved.
But the court also concluded that John had shown other facts that may indicate age discrimination. For one, John’s supervisor frequently suggested he retire, including during the time frame when that supervisor created the new positions and interviewed candidates.
The court sent the case back to the trial court and John will have a chance to convince a jury age was the reason he wasn’t picked. (France v. Johnson, No. 13-15534, 9th Cir., 2015)