Even Age Difference of Eight Years Can Support ADEA Claim if Other Factors Present

As all employers are aware, employment decisions such as hiring, firing and promoting should not be made on the basis of an individual’s age. And one of the key components of a claim based on the denial of a promotion is that the individual who was promoted was substantially younger. So does this mean that if candidates are close enough in age, employers are safe from an age discrimination claim? Perhaps not.  Last month, the Ninth Circuit found that even a difference of eight years could be enough to support an ADEA claim where there was other evidence of age discrimination. France v. Johnson, No. 13-15534 (7th Cir. 2015).

John France was a border patrol agent working for an agency of the United States Department of Homeland Security. In 2007, France applied for a promotion, along with 23 other applicants. The applicants were between 38 and 54 years old. France was the oldest applicant at 54 years old.   France was not selected for the promotion. The selected applicants were 44, 45, 47 and 48 years old. France sued the agency, claiming that the agency discriminated against him on the basis of his age in violation of the ADEA. On appeal, one question the Ninth Circuit faced was whether France had established a prima facie age discrimination case. In a failure to promote case like his, a plaintiff must show that he was (1) at least 40 years old; (2) qualified for the position for which an application was submitted; (3) denied the position; and that (4) the promotion was given to a substantially younger person. Here, the agency claimed that France could not meet the fourth requirement because the individuals selected were not substantially younger than France, given that the average age difference was eight years.

The Ninth Circuit ultimately disagreed. First, the Ninth Circuit adopted the Seventh Circuit’s rule that an age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. Id., p. 10. But, the Ninth Circuit explained, the plaintiff can rebut this presumption with other evidence showing that the employer considered age to be a significant factor. Here, the plaintiff had presented evidence that one of the decision makers had expressed a preference for “young, dynamic agents” and that the same decision maker had discussed retirement with France on a number of occasions, despite the fact that France did not want to retire. Therefore, even though France was less than ten years older than the candidates who were selected, he had succeeded in establishing a prima facie case of age discrimination.

The bottom line is that an employer may not be completely shielded from liability under the ADEA even where a rejected applicant is fairly close in age to the successful candidate. If there are indications that age was a factor in the employment decision, an employee who was not selected may still be able to assert an age discrimination claim.