Oregon Age Discrimination Litigation

Age discrimination cases are some of the most important and difficult of civil rights cases under Oregon and federal employment law. 

Age discrimination cases are important for many reasons, including the fact that age is a characteristic that cuts across all other status classifications such as gender, race, religion, national origin, disability, sexual orientation, and marital status.  A job is an essential part of one's identity and sense of worth for most American and that seems to become even more true as one ages. Losing a job at an advanced age can be a devastating blow. That fact, coupled with the increasing difficulty of obtaining a new job when once one approaches or exceeds 50, makes age cases particularly compelling (40 is the protected age under federal law, whereas any age over 18 is protected under the Oregon state age discrimination statute).  If you believe you have been terminated or harassed because of your age, please call or email.  It's necessary to act promptly, as discussed below, as there are short timelines in which to file age discrimination cases.  Email is the preferred means of initial contact; include only your name, phone number, and employer name (for my firm's conflicts of interest check), and I'll reply promptly and set up a time to talk.  I can be reached at:  jim@employeelawyer.io    Or  you can give me a call at:  (503) 779-5415

This article discusses one significant challenge in these cases, which dates to U.S. Supreme Court Justice O'Connor's initiation of the "stray remarks" doctrine.  As discussed below, a recent Oregon Supreme Court decision, confirming that a "cat's paw" theory of liability exists under Oregon law, may help.  If these stray remarks and cat's paw concepts sound more like gossip on social media, rest assured they are legal principles which Oregon employment lawyers grapple with on a daily basis.  Before turning to the recent Oregon decision, I will discuss some of the fundamentals of an age discrimination case.  

1.  What is Protected Under Age Discrimination Laws
Under federal law, the Age Discrimination in Employment Act ("ADEA") of 1967 protects employees and job applicants age 40 and over from employment discrimination.  29 U.S.C. Section 623

Oregon state anti-discrimination law has a unique twist in that workers age 18 and over are protected from age discrimination.  ORS 659A.030(1)(a)   Under this statute, a worker could feasibly state a claim for being too young as well as too old (presumably not at the same time, although one could perhaps imagine a hypothetical where that could occur). 

To state a claim for discharge based on age discrimination, it is generally necessarily to show the employee was:  1) in the protected class, 2) performing the job satisfactorily, 3) discharged, and 4)  either replaced by a substantially younger employee with equal or inferior qualifications or discharged under circumstances otherwise giving rise to an inference of age discrimination.  Diaz v. Eagle Produce Ltd, P'ship, 521 F.3d 1201 (9th Cir. 2008)  The standard for causation under federal law is "but for" the age of the employee, the adverse employment action would not have occurred.  Lanyon v. Interfor U.S. Inc., Case No. 1:16-cv-2058-MC (D.Or. 2018)  The standard for causation under state law may be subject to debate (e.g. Oregon relies upon "substantial factor" causation in many circumstances).  See Lanyon supra., at footnote 2.  

To proceed under federal law in an Oregon age discrimination case, exhaustion of administrative remedies is required, i.e. a filing with the Equal Employment Opportunity Commission ("EEOC") or with the Oregon civil rights agency, the Bureau of Labor and Industries ("BOLI"), which will dual-file with the EEOC.  Because properly exhausting administrative remedies (a) is a potentially complex prerequisite to proceeding with an age discrimination claim under federal law, and (b) must be accomplished within a very short window of time, 180 days or 300 days in some states, employees considering an Oregon age discrimination claim against their employer should speak to an employment attorney as soon as possible.   

2.  The "Stray Remarks" Concept
Age discrimination cases were already difficult, when Justice O'Connor's concurrence in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1990) set in full motion the "stray remarks" doctrine. 

After that decision, the "stray remarks" concept was drastically extended.  For example, fairly egregious ageist remarks directed toward older employees in the workplace have been dismissed by trial courts and appellate courts as mere "stray remarks."   For example, in Hyland v. American International Group, Case No. 08-4203 (3rd Cir. 2010), the U.S. Circuit Court of Appeals affirmed summary judgment for the employer in an age discrimination case in which the supervisor called plaintiff employee "the old man" of the group just 10 months before terminating the employee.  The Third Circuit said:

"We do not think that a single remark that might reflect the declarant's recognition of an employee's age in a context unrelated to the employer's termination is sufficient to support a prima facie case of age discrimination based on direct evidence at the time that the employer later terminates the employee.  After all, whether or not a supervisor makes reference to an employee's age it is likely that he will have some concept of it.  In any event, it would be unfortunate if the courts forced the adoption of an employment culture that required everyone in the structure to be careful so that every remark made every day passes the employment context of being politically correct lest it be used later against the employer in litigation."

"[P]olitically correct"?  Although this is dicta, suffice it to say, whether the plaintiff if that case -- who was 56 years old and was replaced by an employee 9 years younger -- would or would not prevail at trial, the issue of age discrimination in this circumstance could just as easily been seen as a fact question for the jury.   

A more egregious example of a federal trial court and circuit court of appeals disregarding probative evidence of discriminatory remarks is the case of O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542 (4th Cir. 1995) rev'd on other grounds 517 U.S. 308 (1996).  In that case, the employee was Mr. O'Connor.  His direct supervisor, Mr. Williams, made the following comments:
  • two days before O'Connor's termination, Williams said, "it's about time we get some young blood in this company"
  • two weeks before O'Connor's termination, Williams said, "O'Connor, you are too damn old for this kind of work."
  • a couple months before O'Connor's termination, Williams said, you're "too old"
Affirming the trial court, the U.S. District Court of Appeals for the Fourth Circuit said, "We agree with the district court that these remarks are simply stray comments that do not establish evidence of age discrimination."   Reasonable minds can disagree, but it appears to me the evidence in that case merited a jury trial.  As it turns out, but for different reasons, the U.S. Supreme Court agreed.  The Court reversed and remanded the case because the trial court had ruled that O'Connor, who was 56, could not state a prima facie case of age discrimination because he was replaced by an employee who was 40, and thus also (just barely) a member of the protected class of workers age 40 and older.  The Supreme Court held that in an age discrimination case under ADEA, replacement by an employee who was not in the protected class was not a proper element of the McDonnell Douglas prima facie case.  

Every Oregon employment attorney has heard examples of discriminatory remarks that seem like smoking gun evidence (and often they are), but employee advocates can also predictably anticipate counsel for the employer characterizing the statements as "stray remarks" which had no bearing on the decision-maker.  It is true that the source of the remarks has to be considered, as does the effect of the remarks on the decision-making process that lead to adverse action against the plaintiff.  But the causation requirement has always required a rigorous analysis that goes deeper than simply admitting evidence that lower-level workers may have been biased.  For example, if the manager with hiring or firing power was entirely unaware of the discriminatory remarks, even without the "stray remarks" doctrine, a plaintiff may find establishing causation giving rise to liability to be challenging or even find the claims dismissed on summary judgment.      

On the other hand, where rank and file employees feel free to make discriminatory remarks in the workplace, a culture of tolerance toward discrimination may be present.  For this reason, Oregon employment attorneys on the employee side have welcomed a recent decision by the Oregon Supreme Court which may prove helpful in establishing age discrimination claims (and other Oregon employment law discrimination and retaliation claims).  
 3.  The Recent Oregon "Cat's Paw" Decision
The Oregon Supreme Court recently issued a ruling which may prove helpful to employees prosecuting Oregon age discrimination cases, even though the decision arrived in a case involving employment claims based on safety and whistleblowing complaints.

In 2019, the Oregon Supreme Court decided Ossana v. Nike 365 Or. 196 (July 18, 2019), a case involving statutory claims of retaliation against an employee who had made safety and whistleblowing reports.  In that case, "plaintiff requested a 'cat's paw' jury instruction informing the jury that, in considering his claims, it could impute a subordinate supervisor's biased retaliatory motive to Nike's formal decision-maker, an upper manager with firing authority, if the biased subordinate supervisor influenced, affected or was involved in the decision to fire plaintiff.  The trial court declined to give the instruction, and the jury returned a verdict for Nike.  The Court of Appeals reversed, concluding that the trial court's refusal to give the requested 'cat's paw' instruction was instructional error that prejudiced plaintiff." 

Nike petitioned the Oregon Supreme Court for review of the Court of Appeals' decision. The Supreme Court affirmed:  "We hold that the 'cat's paw' doctrine is a viable theory in Oregon."

While the Oregon Court of Appeals had previously embraced the "cat's paw" or "imputed bias" theory of discriminatory motive in several cases, Ossana v. Nike is the first affirmation by the Oregon Supreme Court that the theory is applicable in a wide variety of employment law cases, provided that the appropriate causal link can be established (the Oregon Supreme Court noted that the "substantial factor" standard applies in the context of the Ossana case, which involved complaints under Oregon safety and whistleblower statutes).  

The Oregon Supreme Court explained the historical development of the "cat's paw" doctrine as follows:  

"The term 'cat's paw' derives from an Aesop's fable popularized by Jean de La Fontaine about a monkey who induces an unwitting cat to pull roasting chestnuts from the fire.  Staub v. Proctor Hospital, 562 U.S. 411, 415 n. 1, 121 S.Ct. 1186, 179 L.Ed. 2d 144 (2011)   As the cat extracts the chestnuts, the monkey consumes them, leaving the cat with nothing but burnt paws.  Id.  In the general lexicon, 'cat's paw' has come to refer to 'one used by another to accomplish [the other's] purposes.'  Webster's Third New Int'l Dictionary 354 (unabridged ed. 2002).  Judge Posner imported the 'cat's paw' doctrine into the employment law context in 1990 when he used the term to describe a neutral decision-maker acting as the 'conduit' of a non-decision maker's prejudice in violation of the Age Discrimination in Employment Act 0f 1967.  Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990)

The Ossana Court was clear that application of "cat's paw" theory does not displace the requirement to establish causation:  "The 'cat's paw' theory provides only a pathway for satisfying the causation requirement of an employment discrimination or retaliation claim; it does not replace or eliminate the causation requirement itself."   Nontheless, the Oregon Supreme Court's clear endorsement of the "cat's paw" theory is an important acknowledgment of workplace realities, which may prove useful in Oregon age discrimination cases.  As the Supreme Court explained, where the biased subordinate influences or was involved in the decision-making process, as is often the case, the "cat's paw" theory "is practical, considering a workplace reality;  The employment setting often consists of multiple layers of networks and relationships; organization models often do not reflect a simple vertical chain of command; and bias can enter the decision-making process through formal or informal channels."  Ossana supra.      

This important recognition by the Oregon Supreme Court of how decisi0n-making actually happens in a workplace should prove to be helpful to employees in Oregon age discrimination cases, as more and more employers attempt to insulate themselves from liability by claiming that there is no evidence that an ultimate decision-maker personally articulated discriminatory views.  
4.  Conclusion
While the law surrounding age discrimination claims is well-established, ongoing litigation in this area continues to mold the litigation framework.  It is important to consult with an Oregon age discrimination attorney if you feel you have been discriminated against on the basis of your age.  I am always happy to help in this important area of civil rights laws which ideally provides protection to us all.