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AARP Urges Appeals Court to Reverse 'Sole Cause' Age Discrimination Ruling

Legal briefs argue it's still bias even if age isn't only factor behind firing

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En español | An appeals court ruling in an age discrimination lawsuit brought by an Ohio bank teller could harm legal protections for older workers, according to two amicus briefs filed in support of the teller's effort to overturn that decision.

One brief was filed by AARP, AARP Foundation and the National Employment Lawyers Association (NELA), urging the U.S. Court of Appeals for the 6th Circuit to reverse a panel ruling in the lawsuit, Pelcha v. MW Bancorp Inc. The second brief, also in support of the plaintiff, Melanie Pelcha, was filed by the Equal Employment Opportunity Commission (EEOC). The EEOC is the federal agency responsible for handling complaints related to the Age Discrimination in Employment Act (ADEA), which protects people 40 and older from bias in the workplace.

Pelcha started working at Watch Hill Bank in Ohio in August 2005. In July 2016, she was fired for failing to properly submit a request for a few hours off work, even though she had received verbal permission from her supervisor to take the time off. A new policy the bank enacted earlier that year required employees to submit written requests for time off by the middle of the month before the month in which the time would be taken. Pelcha, who was 47 at the time, was replaced with a woman a decade younger.

"Placing the burden on older workers to show age discrimination as the sole cause of an adverse employment decision would often make it extremely hard to prove illegal bias based on age."

— AARP Foundation Senior Vice President for Litigation William Alvarado Rivera

Pelcha's age discrimination lawsuit is based in part on comments made from the bank's president and CEO, who played a role in her dismissal. According to the lawsuit, the president once stated he wanted to “hire younger tellers.” Also, when discussing another employee who was in her 80s, he said she had a “limited shelf life” and had reached her “expiration date."

'Sole cause’ legal standard at heart of dispute

In January, when a panel of judges from the 6th Circuit Court of Appeals upheld a district court ruling in favor of the bank, they noted that Pelcha could not prove that her age was the sole cause for her firing. Pelcha is now appealing to the full 6th Circuit Court to overturn that panel ruling. Both of the amicus briefs from AARP and the EEOC argue that a “sole cause” standard should not apply in this case, based on previous legal precedents, including from the U.S. Supreme Court. If “sole cause” were to become the new standard in age discrimination cases, it would be extremely difficult for older Americans to successfully fight age bias through the courts.

"Too many older workers have been victims of age discrimination and are denied a fair shake in our justice system. Placing the burden on older workers to show age discrimination as the sole cause of an adverse employment decision would often make it extremely hard to prove illegal bias based on age,” said William Alvarado Rivera, AARP Foundation senior vice president for litigation. “Age should not play a role in employment decisions. If this legal error is not corrected, we fear it may be replicated in other courts across the country — erasing decades of progress made against age discrimination in the workplace."

The EEOC's brief asserts that the court should use a “but-for” standard to determine whether Pelcha was fired due to illegal age discrimination. The but-for standard means that age would only have to be a determinative factor in Pelcha's firing, not the only such factor.

"The conclusion that the ADEA requires a showing of but-for causation, not sole causation, is amply supported by numerous other decisions of the Supreme Court, this court and other courts of appeals,” the EEOC brief states.

Kenneth Terrell covers employment, age discrimination, work and jobs, careers and Congress for AARP. He previously worked for the Education Writers Association and U.S. News & World Report, where he reported on government and politics, business, education, science and technology, and lifestyle news.

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