Given that baby boomers are living longer and wanting to work past the usual retirement age, and that 40 is the new median age in the United States, companies should expect to see an uptick in age related claims. A recent federal district court decision serves as a refresher course on age discrimination in the context of a failure to promote. In Gonzalez-Bermudez v. Abbott Labs. PR Inc., 2016 U.S. Dist. LEXIS 140536 (D.P.R. October 9, 2016), the United States District Court for the District of Puerto Rico denied the Defendant's motion for summary judgment on the Plaintiff's claim under the Age Discrimination in Employment Act ("ADEA").

The ADEA protects employees age 40 and over from discrimination in employment (hiring, firing, promotion, etc.) based on their age. The Supreme Court requires plaintiff to "establish that age was the `but-for' cause of the employer's adverse action," a much stricter standard than that applied in Title VII cases. Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 129 S.Ct. 2343, 2351, 174 L.Ed. 2d 119 (2009). Courts have held that replacement of an employee with a younger employer cannot make a prima facie case of age discrimination if the age difference is less than five years. See Williams v. Raytheon Co., 220 F.3d 16, 20 (1st Cir. 2000).

In Gonzalez-Bermudez, the Court denied defendant's motion for summary judgment primarily for the following reasons:

  • Plaintiff established that the demotion was an adverse employment action, she met the minimum requirements of the job, received "Achieves Expectations" performance ratings, and was never placed on an improvement plan or disciplined;
  • There was sufficient evidence to support that similarly-situated younger counterparts were treated more favorably in terms of raises and promotions;
  • Plaintiff was excluded from important company processes and meetings; The job was filled by a 31-year-old external candidate (against company
  • policy of favoring internal candidates and plaintiff met the requirements of the position); and
  • Defendant was inconsistent and contradictory on the record.

Additionally, the Court found that the employer had possessed certain relevant evidence yet destroyed it after being notified of a potential litigation. Accordingly, the Court granted plaintiff's request for a spoliation sanction and noted that the jury would be instructed to infer that certain e-mails destroyed would have been unfavorable to the employer.

Best practice tips: As soon as a potential claim is made, investigate it; in making a decision to not promote an employee over 40, make sure you have a reasonable basis for the decision and document it; immediately implement a document retention policy and make sure you maintain all documents relevant to claims. Following this guidance should help reduce significantly a company's exposure to such claims.