In Westmoreland v. TWC Administration, the trial judge made a subtle but very significant error when he instructed the jury in an age discrimination case. According to the defendant, the plaintiff was not fired because of her age but because she improperly backdated a document. Clearly, this is a nondiscriminatory reason for firing someone, so if that's really why an employee was fired, she should be out of luck. The district court erred, however, in instructing the jury that it was first required to determine whether backdating was a "legitimate business reason" for firing the plaintiff. If so, the jury was then required to determine whether backdating was not the real reason for the termination but a pretext for age discrimination.
The problem here is that an employer is not required to have a "legitimate business reason" for taking an action, only a nondiscriminatory one. Case law commonly provides that an employer has to have a "legitimate, nondiscriminatory reason" for its action. However, this is misleading. As the Supreme Court has explained, the Age Discrimination in Employment Act obviously does not prohibit all illegitimate motives, only age-based motives. Thus, although firing someone for being black is not a legitimate business reason, it does not violate the ADEA. However, if, as the court instructed the jury in Westmoreland, an employer must not only provide a nondiscriminatory reason but an actual "legitimate business reason," then any kind of improper reason, in the judgment of the jury, will violate the ADEA.
It is true that if an employer provides a facially "illegitimate" reason for its action, a jury may take that into account in determining whether the employer was actually motivated by the asserted reason. Here, however, the court separated these inquiries and instructed the jury that it should first determine whether the employer's reason was good enough, without regard to whether it was a pretext for age discrimination. The employer's decision to terminate an employee with 30 years of consistently satisfactory work for one incident of misconduct seems rather extreme, so if the jury was invited to determine whether that was a legitimate business reason, it may have jumped at the chance to punish the employer for terminating a long-time employee with so little justification.
According to Judge Niemeyer's dissent, there was "absolutely no evidence that Westmoreland was fired because of her age." I disagree, as the jury was entitled to consider, for example, whether the alleged misconduct plausibly would have led an employer to fire a 30-year employee. I agree with Niemeyer, though, that the trial court improperly tasked the jury with deciding whether the employer's decision was fair. To be sure, it may not be fair to fire an employee for, what the jury may have seen, as the flimsiest of reasons. But that's not the issue. Rather, the only question is whether the employer acted because of the plaintiff's age.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.
