Layoffs and terminations bring a host of potential problems, especially when a protected class such as age is involved. The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against older employees in favor of younger ones. The case the Eighth Circuit was confronted with this issue on December 4, 2013 in Hilde v. The City of Eveleth, No. 12-2794 (8th Cir. 2013). In Hilde, Plaintiff Leroy Hilde worked as a police officer for the City of Eveleth for 29 years. He served as Lieutenant, which was the second highest ranking officer, since 1998. Hilde filed an ADEA action against the city when he was not selected for the chief of police vacancy.

To be successful in an ADEA claim, Hilde had to prove: (1) he was within the protected class (forty or over); (2) he was performing his job to the employer’s legitimate expectations; (3) he was discharged (or some other action that rises to the level of an adverse employment action); and (4) the employer replaced him with someonesubstantially younger. The parties debated the last element since the eventual new police chief was 43 and Hilde was 51. Eight years, in the Eighth Circuit’s eyes, is not “substantially younger” enough to be actionable under the ADEA. Because of that, Hilde’s case was dismissed.

Choosing someone who is mere minutes, days, years, or—for some circuits—a decade in difference younger than the alleged preferred employee will not be considered “substantially younger” and thus be able to claim ADEA discrimination. The age requirement varies widely among the circuits: some go as long as 10 years for the Seventh Circuit and others as short as 3 years for the Eleventh Circuit. While the Eighth Circuit did not give a concrete answer as to what is sufficient to be substantially younger for an ADEA claim, the number eight is not enough.