Friends of mine who know I represent employees in discrimination cases often ask me about age discrimination in the Kansas courts and how I prove these cases. Frankly, it is not easy.
Age discrimination cases arise under a federal act, the Age Discrimination in Employment Act, also referred to as the ADEA. Although these cases can be filed in state court, they are almost always removed to federal court because employers and their counsel are well aware of the hostile lens through which the federal courts view employment cases. Age discrimination cases can be removed from state court to federal court because they involve a “federal question.”
What does an older worker (the plaintiff) have to show if he or she believes they are the victim of age discrimination? The jury in Kansas is required to find the following elements to rule in favor of the employee in an age discrimination claim:
1. The plaintiff was an employee of the defendant employer
2. The plaintiff was forty or more years old at the time of his discharge;
3. The plaintiff’s employment was terminated; and
4. The plaintiff would not have been terminated but for his/her age. The plaintiff has the burden of proof to prove all of these elements by a “preponderance of the evidence,” which simply means more believable than not.
Obviously, an age discrimination rises and falls on the 4th element: whether an employee would not have been terminated but for his age. How do I go about proving this? There are two kinds of evidence that can be used to prove age discrimination: direct and circumstantial. Direct evidence is direct proof of a fact, such as testimony of an eyewitness. The best example of this is the plaintiff’s boss saying: “Bob, you are just getting too old to do sanding. Shouldn’t you be enjoying your life in an easy chair?” This type of evidence rarely comes along because most employers are well-trained to hide such feelings. Circumstantial evidence, on the other hand, is indirect evidence that leads a juror to believe that age discrimination took place. The best description of circumstantial evidence I ever heard was by one on my heroes, Federal Judge Frank Theis, who was appointed by President Johnson and passed away in 1998. In one of my first trials in federal court back in the 1980’s, Judge Theis (an avid outdoorsman) used this story to describe circumstantial evidence:
Imagine you are out rabbit hunting early one December morning. It is a beautiful winter morning and a fresh blanket of snow covers the ground. You come across a set of tracks which any hunter worth his salt instantly recognizes as rabbit. In the fresh snow, you follow the tracks to a hollowed out log. Now, you didn’t actually see the rabbit hop into the log, but you know that rabbit is in the hollow log. How? Because the tracks go to the hollow log and do not come out. That, folks, is circumstantial evidence.
The task in age discrimination is proving that age is the “but for” reason for an older worker’s discharge. The employer always has a plethora of reasons about why my client was fired–none of which ever has anything to do with age. The attorney representing the older worker must take on these reasons and show they are pretextual. That, is age discrimination in a nutshell.
Randall K. Rathbun
randy@depewgillen.com
January 2017
Depew Gillen Rathbun & McInteer, LC
This article is based on hypothetical facts and is issued for general informational purposes only. It is not intended to be construed or used as legal advice.
