It Takes More Than Membership
It Takes More Than Membership In A Protected Status To Prove Discrimination.
By Hugh W. Cuthbertson
It is surprising how many people think that mere membership in a protected category, such as age (40 years or older), gender or race, means that an employer is prohibited from taking any sort of adverse action against them. How many times have you heard someone say, “They can’t fire me, because I’m over 40 – that would be age discrimination!” Or, “They can’t do that to me, because I am a female and that would be sex discrimination!”
While it is true that state and federal law prohibit an employer from discriminating against an employee with respect to his or her compensation, terms, conditions or privileges of employment on account of certain factors, including age, sex, race, religion, national origin, ancestry, and disability, it is not true that mere membership in any of these protected classes insulates an employee from adverse job action to any degree greater than non-protected class members.
Indeed, because discrimination may ordinarily be difficult to prove, the courts have developed a so-called “burden-shifting framework” under which most discrimination claims operate. First, a plaintiff must present evidence to show a prima facie case of discrimination. He or she does this by establishing that 1) he or she is in a protected class; 2) he or she was qualified for his or her position; 3) he or she was subject to an adverse employment action; and 4) that action occurred under circumstances giving rise to an inference of invidious discrimination. If the plaintiff succeeds in showing a prima facie case of discrimination, a presumption of discrimination is thereby established, which the defendant-employer may then rebut by articulating (but not proving) a legitimate, nondiscriminatory reason for taking the adverse action. If the employer does this, then the plaintiff can still succeed in proving discrimination if he or she can show that the reason offered by the employer was a pretext for discrimination, meaning that the employer’s stated reason was untrue and that discrimination was either the or a motivating reason for the action taken.[i]
A recent example of the various factors that need to be considered before concluding that discrimination occurred is provided by in a decision recently issued (January 16, 2015) by the Connecticut federal court – Smith v. Connecticut Packaging Materials – in which “summary” judgment was entered in favor of the employer, thus ending the plaintiff’s case before trial.
The plaintiff in this case, Lorinda Smith, was the oldest of four sales representatives and worked for the defendant (the “Company”) for more than 20 years. Ms. Smith was outstanding at her job and enjoyed by far the highest salary ($500,000) among the sales representatives. In May 2012, Ms. Smith’s employment was terminated by the Company’s founder, Larry Greenfield. Ms. Smith was then 64 and Mr. Greenfield was 73. Two of the other sales representatives were middle-aged men (53 and 45), while the fourth sales representative was a middle-aged woman (53).
At the time, the Company was in serious financial trouble, having a year-to-date loss of $300,000. Mr. Greenberg himself had stopped taking a salary two years before. The Company met with its bank and requested, but was turned down for additional financing. The bank in fact told the Company that it might need to accelerate its existing loans, unless the Company reduced its costs significantly.
Mr. Greenberg accordingly met with Ms. Smith and told her that he needed to terminate her employment as a cost saving measure. Ms. Smith claimed that Mr. Greenberg used the phrase “early retirement” during their meeting. Ms. Smith was not replaced and instead Mr. Greenfield took over her job responsibilities himself. As a result of Ms. Smith’s termination and replacement by Mr. Greenfield (who continued to take no salary), the Company reduced its costs by more than $400,000 per year. There was no evidence of any prior adverse comments made by any of the Company’s management about Ms. Smith regarding her age or gender for the more than 20 years she had worked for the Company.
Ms. Smith claimed that she had been terminated because she was an older woman. Her claim was based on the fact that she was the the oldest of the three sales representatives, all of whom she out-performed, but each of whom kept his or her job, while she did not. Ms. Smith also argued that the “early retirement” comment made to her by Mr. Greenfield at the time of her termination was suggestive of a discriminatory age bias on his part.
In analyzing the facts, the district court ruled that although Ms. Smith had established the first three prongs of her prima facie case – 1) she was a woman and over 40; 2) she was more than qualified for her position; and 3) she was subject to an adverse employment action – the termination of the only older woman of the small handful of Company employees doing sales work did not give rise to an inference of invidious discrimination and, therefore, did not establish the fourth prong.
The court found that Ms. Smith’s evidence failed to show that similarly situated employees outside of her protected classes – age and gender – were treated more favorably than she. First, the court found that the “singular” termination of Ms. Smith did not give rise to an inference of discrimination because she happened to be the only older woman of the “small handful” of Company employees doing sales representative work. Not only was the sample of other employee comparators too small, Ms. Smith also did not show that she was similarly situated “in all material respects” to the individuals with whom she sought to compare herself, because of their salary differential (Ms. Smith was earning more than the three other sales representatives combined). This fact rendered the other sales representatives not to be appropriate comparators, since the elimination of Ms. Smith’s salary made a difference in reducing the Company’s expenses, whereas the elimination of the other three salaries would not.
Insofar as the “retirement” comment was concerned, the court found it did not show that Mr. Greenfield was motivated by assumptions or attitudes relating to Ms. Smith’s age. This was so, because Mr. Greenfield’s comment made explicit the financial issues underlying his decision and Mr. Greenfield was himself ten years older than Ms. Smith. The court determined that no reasonable jury could conclude that the circumstances surrounding the remark revealed discriminatory attitudes toward Ms. Smith on account of her age. The court concluded by saying that the relevant inquiry was not whether the Company made the correct “business” decision, but whether the Company made a “discriminatory” decision.
Any meaningful analysis of whether a discrimination claim has merit and/or whether it is likely to be successful under the burden-shifting framework developed by the courts must take into consideration a whole host of factors in addition to an individual’s protected class membership. This is so, because membership in a protected class is only one of several elements which must be shown to make out the required prima faciecase of discrimination. And, it must be kept in mind that the plaintiff has the additional burden of demonstrating that any legitimate reason articulated by the employer for the action taken is a pretext for discrimination,
As recently pointed out by the federal court in Connecticut, the question is not whether the employer made the correct business decision, but whether it made a discriminatory decision. Business judgment and motivation are, after all, two different things. While an employer’s judgment about business matters may be faulty, the laws against employment discrimination do not require an employer to assess its needs to perfection; they only require that such an assessment not be colored by discriminatory intent.
[i] In age discrimination cases, the plaintiff must prove that “but for” his or her age, the adverse employment action would not have been taken. In gender discrimination cases, the plaintiff must show that gender was a“motivating factor” in the decision to take the adverse job action.