The Ninth Circuit Court of Appeals recently affirmed summary judgment in favor of an employer in an age discrimination case. However, not all news is good news regarding the Court’s decision in Schechner v. KPIX-TV, No. 11-15294 (9th Cir. May 29,2012). The Court “clarified” that the employees could use statistical evidence to establish a prima facie case of age discrimination even if the statistical evidence does not address the employer’s stated reasons for the adverse action. The Court stated:

 

Consistent with our precedents, we conclude that a plaintiff who submits statistical evidence that shows a stark pattern of age discrimination establishes a prima facie at step one of the McDonnell Douglas framework. We hold that statistical evidence does not necessarily fail to establish a prima facie case because it does not address the employer’s proffered non discriminatory reasons for the discharge. We do not hold that any statistical evidence of disparate treatment, regardless of its strength, will be sufficient to establish a prima facie case.

 

In a positive development for employers, the Court used the "same actor inference" when analyzing whether the employer’s reason for the discharge was a pretext for discrimination. The Count found that the employer was entitled to the favorable inference. The Court ruled against the employee finding:

 

“[W]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996).The same-actor inference is “a ‘strong inference’ that a court must take into account on a summary judgment motion.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1098 (9th Cir.2005) (quoting Bradley, 104 F.3d at 271). The inference applies to favorable employment actions other than hiring,such as promotion. Id. at 1097. It also may arise when the favorable action and termination are as much as a few years apart. Id.

 

Based on this inference and other factors, the Court found the employees failed to establish that the employer’s reason for their lay-off was a pretext for discrimination. The case provides several lessons for employers when conducting layoffs and we suggest seeking advice from employment counsel to review potential issues.

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Photo of Jonathan A. Siegel Jonathan A. Siegel

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and…

Jonathan A. Siegel is one of the founding Principals of the Orange County, California, office of Jackson Lewis P.C. He practices before the Equal Employment Opportunity Commission, National Labor Relations Board, state and federal agencies and courts.

Mr. Siegel also provides advice and counsel regarding labor and employment law with respect to various issues ranging from wage and hour law, reduction in force, WARN Act, discipline, leave management and harassment and discrimination issues. Mr. Siegel defends employers regarding different varieties of wrongful termination and discrimination claims.

Mr. Siegel has represented management in union organizing drives and regularly defends employers in unfair labor practice proceedings as well as in collective bargaining and arbitrations. He also has extensive experience conducting wage and hour preventive audits. He conducts single location and multi-location audits for employers. The scope of such audits can range from examining specific issues, i.e., exempt status under federal law and California, to comprehensive FLSA and California Labor Code audits. Mr. Siegel has conducted audits for a wide range of industries including, but not limited to manufacturing, retail, transportation, various service industries, defense contractors and healthcare.

Mr. Siegel regularly speaks on a variety of topics including wage and hour, harassment/discrimination, national and California employment trends, Workers’ Compensation, EEO, managing leaves of absence under FMLA and state leave laws and union avoidance. He has moderated numerous programs and is featured as a keynote speaker for several different organizations.