Jottings By An Employer's Lawyer

Monday, June 28, 2004

Mixed Motive Analysis Applicable in ADEA Cases According to 5th Cir.

Friday, the 5th Circuit addressed an issue that was a logical follow up to last summer's Desert Palace decision by the Supreme Court. Is a mixed motive analysis applicable in cases under the ADEA? Although it would have a shock if it had gone the other way, the 5th Circuit did confirm it is applicable. Rachid v. Jack In the Box, Inc. (5th Cir. 6/25/04) [pdf]. The Court punted on the issue of whether a replacement only five years younger than plaintiff was insufficient to establish a prima facie age claim, holding that because there was other sufficient evidence to establish a prima facie case, it did not need to decide that question. For a recent survey from other Circuits, see my earlier note, Ever Wonder What the Bright Line for Age Discrimination Is - A Survey By the 6th Circuit .

The Court also set out what it viewed as the post-Desert Palace burden for plaintiffs once the employer has met its burden of articulating a legitimate business reason for the discharge:
“the plaintiff must then offer sufficient evidence to create a genuine issue of material fact ‘either (1) that the defendant’s reason is not true, but is instead a pretext for discrimination (pretext alternative); or (2) that the defendant’s reason, while true, is only one of the reasons for its conduct, and another ‘motivating factor’ is the plaintiff’s protected characteristic (mixed-motive[s] alternative)."

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