The Ninth Circuit Court of Appeals held in France v. Johnson that an average age difference of less than ten years between a plaintiff and replacement employees creates a rebuttable presumption in an age discrimination claim that the age difference is “insubstantial.”

John France, age 54, was employed as a border patrol agent for the U.S. Department of Homeland Security and unsuccessfully sought a promotion to a GS-15 level position. The four candidates who were selected for the position were 44, 45, 47 and 48 years old. France filed a lawsuit alleging age discrimination in violation of the ADEA.

After the trial court dismissed the age discrimination claim, France appealed the case to the Ninth Circuit. A key issue was whether France was able to assert a prima facie case of age discrimination, which includes a requirement that, among other things, France was denied a promotion in favor of a “substantially younger person.” The court held that the average age difference between the plaintiff and the selected candidates in this case—8 years—would normally be insufficient to satisfy the requirement of a substantially younger person. In so holding, the Ninth Circuit adopted the “reasonable and workable rule” that an average age difference of less than ten years is presumptively insubstantial under the ADEA.

However, the court also held that such a presumption may be rebutted with other evidence of age discrimination, which happened in this case due to statements that the employer preferred “younger, less experienced agents” and strongly urged France to retire. On this basis, the court reversed and remanded the case for further proceedings.