Statistical Evidence in Age Discrimination Case Need Not Address Employers' Explanations: Ninth Circuit | Practical Law

Statistical Evidence in Age Discrimination Case Need Not Address Employers' Explanations: Ninth Circuit | Practical Law

The US Court of Appeals for the Ninth Circuit clarified in Schechner v. KPIX-TV that the McDonnell Douglas three-step burden-shifting test does not collapse into one step when plaintiffs rely on statistical evidence to make out their prima facie case. The court also held that a plaintiff can make out a prima facie case of disparate treatment age discrimination using statistical evidence even if it does not address the defendant's legitimate, nondiscriminatory reason for the adverse employment decision.

Statistical Evidence in Age Discrimination Case Need Not Address Employers' Explanations: Ninth Circuit

by PLC Labor & Employment
Published on 30 May 2012 • California
The US Court of Appeals for the Ninth Circuit clarified in Schechner v. KPIX-TV that the McDonnell Douglas three-step burden-shifting test does not collapse into one step when plaintiffs rely on statistical evidence to make out their prima facie case. The court also held that a plaintiff can make out a prima facie case of disparate treatment age discrimination using statistical evidence even if it does not address the defendant's legitimate, nondiscriminatory reason for the adverse employment decision.

Key Litigated Issues

The US Court of Appeals for the Ninth Circuit issued a decision in Schechner v. KPIX-TV on May 29, 2012. A key litigated issue in the case was whether plaintiffs may successfully rely on statistical evidence to make out a prima facie case of disparate treatment age discrimination where the statistics do not address the defendant employer's legitimate, nondiscriminatory reasons for the adverse employment decision.

Background

Plaintiffs William Schechner and John Lobertini were laid off from their jobs as television news reporters at KPIX-TV as part of a reduction in force. The plaintiffs sued under the California Fair Employment and Housing Act (FEHA), claiming they were discriminated against on the basis of age and gender. In interpreting the FEHA, California applies federal employment law principles, including the three-step burden-shifting analysis from McDonnell Douglas Corp. v. Green.
In this case, the plaintiffs submitted statistical evidence comparing the on-air talent who were laid off with the entire pool of on-air talent at KPIX-TV, concluding that those who were laid off were, as a group, older than those who were not laid off. The statistical report assumed that all the on-air talent had an equal probability of being laid off and did not account for each individual's contract expiration date.
In rebutting the plaintiffs' prima facie case, KPIX claimed:
  • It exempted news anchors and specialty reporters from the pool of employees who could be laid off.
  • General reporters, such as the plaintiffs, were laid off according to the next date of contract expiration.
The district court granted KPIX's motion for summary judgment on all of the plaintiffs' claims. With respect to the disparate treatment claim, the court found that:
  • The three-step McDonnell Douglas analysis collapses into a single step when a plaintiff relies primarily on statistical evidence to support his prima facie case of age discrimination, meaning the plaintiff would have to preemptively account for the defendant's legitimate, nondiscriminatory reason for the adverse employment action in the statistical report to show a stark pattern of discrimination.
  • The plaintiffs failed to make out a prima facie case of age discrimination because their statistical analysis did not address KPIX's legitimate, nondiscriminatory reasons for their discharge.
The plaintiffs appealed only the district court's grant of summary judgment on their disparate treatment claim.

Outcome

The Ninth Circuit held:
  • The McDonnell Douglas three-step burden-shifting analysis does not collapse into a single step when plaintiffs use statistical evidence to make out their prima facie case.
  • Plaintiffs can make out a prima facie case of disparate treatment age discrimination by using statistical evidence, even where that evidence does not account for the defendant's legitimate, nondiscriminatory reason for the adverse employment action, since plaintiffs face a minimal burden of proof at the prima facie stage.
However, the court upheld the district court's grant of summary judgment on the disparate treatment claim, finding that although the plaintiffs in this case had made out a prima facie case, they had failed to show KPIX's proffered reasons for terminating them were pretextual.

Practical Implications

The Ninth Circuit's decision clarifies that the McDonnell Douglas three-step burden-shifting analysis does not collapse into a single step when plaintiffs use statistical evidence when claiming disparate treatment age discrimination. While this decision may make it easier for plaintiffs to use statistical evidence to make out a prima facie case, plaintiffs must still show the defendant's proffered legitimate reason for the employment action is a pretext for discrimination.
For more information on the McDonnell Douglas burden-shifting analysis and federal age discrimination law, see Practice Note, Age Discrimination. For more information on California's FEHA, see State Q&A, Anti-discrimination Laws: California.

Court Documents