By: Whitny Norton
Plaintiffs relying on circumstantial evidence to prove age discrimination are not limited to proving discrimination by establishing the defendant employer’s stated purpose was a pretext for a discriminatory purpose. Such plaintiffs need only show that discrimination substantially motivated the employer, not that the employer’s decision was a pretext for a discriminatory purpose. In a recent Washington Supreme Court decision, Scrivener v. Clark College, Clark College hired two instructors under 40 years of age for tenure track faculty positions rather than Scrivener, a 55-year-old temporary English instructor and long time Clark College employee, qualified for the position. The college made these hires after its President stated that there was a glaring need for younger faculty and mocked Scrivener with a reference to The Daily Show, indicating he wanted candidates that displayed youthfulness. That year, the college ultimately hired more faculty members under 40 than those over 40. Scrivener sued Clark College alleging age discrimination.
When a plaintiff lacks direct evidence of age discrimination, Washington courts use the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973). The Scrivener Court clarified that under McDonnell Douglas a plaintiff relying on circumstantial evidence to overcome summary judgment may satisfy the pre-text prong by: (1) showing the employer’s decision was pretextual by presenting evidence that the articulated reason (a) has no basis in fact, (b) was not really a motivating factor for the decision, (c) lacks a temporal connection to the decision, or (d) was not a motivating factor in the employment decisions for other employees in the same circumstances; or (2) showing that discrimination was a substantial factor motivating the employer. The Scrivener Court explained an employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the Washington Law Against Discrimination due to the presence of an illegitimate purpose. Ultimately, the Court overturned the trial court’s grant of summary judgment in favor of Clark College which was affirmed by the Court of Appeals, Division II, holding that Scrivener presented sufficient evidence to create a genuine issue of material fact regarding whether age was a substantial motivating factor in the college’s decision not to hire her.
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