If You Can't Be Fired For Being Old, Can You Be Fired For Being Old AND Ugly? Why This Is A Harder Question Than You Might Think

| Andrew P. Torrez

There’s been another important development in the legal landscape with respect to age discrimination cases, as last week a federal district court in Oklahoma ruled that the EEOC could proceed to trial on behalf of an employee who alleges that she was terminated by her employer for being “old and ugly.”  Equal Employment Opportunity Commission v. Kanbar Property Mgmt., LLC, Case No. 12-CV-00422-JED-TLW (Aug. 23, 2013).  (Although similar factually, this is a different lawsuit than the “you’re not that pretty” case discussed by our colleague Bill Schreiner last week, which survived a motion to dismiss.)

If you’re not an employment lawyer, this might strike you as the proverbial “dog bites man” headline.  After all, if you can't be fired for being old, certainly you can't be fired for being old and ugly, right?  Right?

Well, as it turns out, the law isn’t quite so straightforward.  Read on….

The analysis begins with the Supreme Court’s controversial 2009 decision in Gross v. FBL Fin. Svcs, Inc., 129 S.Ct. 2343 (2009), in which the Court interpreted the Age Discrimination in Employment Act of 1967 (ADEA) as requiring a plaintiff to prove, by a preponderance of the evidence, that age was the deciding (“but-for”) cause of his or her termination.  By doing so, the Supreme Court in Gross essentially stated that it would treat lawsuits based on age discrimination differently than other Title VII discrimination cases, in which the plaintiff need only prove that his or her membership in a protected category (race, color, religion, sex, or national origin) was a “contributing” factor to his or her termination.

This distinction can prove critical in what are called “mixed motive” cases, where the employer may have evidence that an employee was terminated for reasons beyond his or her membership in a protected class.  (Our Jason Knott has an excellent discussion of Title VII mixed motive cases that you can read here.)  In those cases, once the plaintiff has demonstrated that her membership in a protected class was a contributing factor in her termination, the burden shifts to the employer to prove that it would have terminated the employee for other legitimate reasons even without the contributory discriminatory motive.  This approach – while far from perfect – has generally served to balance competing realities in employment discrimination cases.

In Gross, the Supreme Court held that the ADEA simply did not authorize a mixed-motive age discrimination claim, Gross, 129 S.Ct. at 2350, and thus an employer could prevail on summary judgment and prevent a plaintiff from going to Court by demonstrating that discrimination against the employee on the basis of age was not “determinative” of the outcome of the employee’s firing.  (As a result, there have been repeated bipartisan efforts to amend the ADEA to overturn the Gross standard; last month, we told you about the most recent effort when both houses of Congress reintroduced the “Protecting Older Workers Against Discrimination Act.  For now, though, Gross remains good law.)

And here’s where the rubber meets the road:  does repeatedly calling an employee “old and ugly” constitute a “mixed motive”?  That’s exactly what the defendant, Kanbar Property Management, argued in its summary judgment motion, arguing that the statements reflected both ageism (which is prohibited by the ADEA) and “lookism,” which is not.  Because the employee was terminated for both reasons, Kanbar argued, she couldn’t prove that the prohibited age discrimination was the “but-for” cause of her termination.

The U.S. District Court for the Northern District of Oklahoma rejected that argument, for two reasons.  First, the Court held that a reasonable jury could find that the “old and ugly” statements were “two sides of the same coin,” both attributable to the plaintiff’s age.  Second, and more importantly, the Court held that “but-for” causation does not require a plaintiff to prove sole causation, so long as the plaintiff demonstrated a “direct nexus between that [discriminatory] motivation and [the] decision to terminate.”  Accordingly, the Court denied Kanbar’s motion for summary judgment and allowed the plaintiff to proceed to trial.

Keep in mind that EEOC v. Kanbar isn’t directly binding on other courts that might hear the same issue, and the case relied upon by the court for the proposition that “but-for” does not equal “sole” causation comes from the U.S. Court of Appeals for the Tenth Circuit, which only hears appeals from cases filed in federal court in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.  For age-related employment discrimination cases outside of those six states, it will depend on how persuasive those courts in other jurisdictions find Kanbar to be.  But for now, we know of at least one court that has rejected the argument that any combination of motives is sufficient to defeat a claim under the ADEA, and that’s a big deal for both employers and employees.