Wanting ‘Someone Younger’ for Different Job Relevant to Age-Bias Suit

Global HR

​In a case alleging age bias, a statement by a university employee that the university was looking for someone younger for a different position was relevant and should have stopped the trial court from dismissing the claim before trial, a California appeals court ruled.

The trial court found the comment irrelevant because it was made by someone who was not directly involved in the promotion decision at issue, in relation to a different job at the university. However, the California Supreme Court has said that an age-based remark may be relevant, circumstantial evidence of discrimination even if it is not made directly in the context of an employment decision or said by a decision-maker (Reid v. Google Inc., 50 Cal.4th 512, 2010). Based on Reid, the appeals court sent the employee’s claim back to the lower court for further proceedings.  


The plaintiff had worked at the university since 1994. She alleged that in 2014, the dean discriminated on the basis of age when he promoted a younger employee with less experience instead of the plaintiff to an assistant dean position. She sued in 2018 and resigned in 2019.

The university claimed that the plaintiff was a problem employee and that the person who received the promotion was effective and hardworking. To support her bias claim, the plaintiff presented a declaration from a former school employee who said that when someone else asked about a different open position, an employee who had influence over the dean said she wanted someone younger to be hired for that other open position.

The university claimed this evidence was irrelevant and should not factor into the court’s decision as to whether the case could proceed to trial because it involved a different position and a different decision-maker. The trial court agreed, refused to admit the evidence and granted the university’s motion to dismiss the case before trial.

The plaintiff appealed. The appellate court cited the Reid decision and reversed the ruling. In Reid, the state high court noted that the value of a stray comment depends on the precise character of the remark. The relevance increases when the declarant might influence the decision.  

Under Reid, the appellate court said, the remark made here was relevant because one could infer that the speaker could influence the dean (the school’s top decision-maker) on all issues, including hiring and promotion.

Evidence showed that the dean placed a great deal of trust in the opinion of the person who allegedly made the comment about hiring someone younger, and she definitely had the potential to affect the dean’s decisions.

Therefore, the appeals court said, the trial court erroneously excluded evidence.

However, this alone does not mean the trial court acted improperly in dismissing the case before trial, the court added. A stray remark alone may not create a triable issue. Rather, the court said, the usual three-part burden-shifting test still applies.

First, the plaintiff must raise a presumption of discrimination. Second, the employer may rebut the presumption by showing it acted for legitimate and nondiscriminatory reasons. Finally, the plaintiff may attack the employer’s stated reasons or may offer other evidence of improper motives.

The trial court ruled that the university offered legitimate reasons for its actions and the plaintiff failed to show pretext.

However, the appeals court said the remark that the trial court refused to admit into evidence changed the pretext analysis. The remark was not ambiguous and the evidence that the dean had high regard for the advice of the speaker of the remark was clear, the court said. This strengthened the plaintiff’s evidence that the university’s asserted reasons for failing to promote her were not its true reasons.

Jorgensen v. Loyola Marymount University, Calif. Ct. App., No. B305594 (Sept. 10, 2021).

Professional Pointer: This decision illustrates the dangers of making any comments related to an employee’s age or other protected characteristic, even comments made by non-decision-makers.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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