In Schechner, et al. v KPIX-TV, et al., the Ninth Circuit clarified the proof an employee must present in order to establish an age discrimination action under California’s Fair Employment and Housing Act (FEHA).  A broadcasting company terminated the employment of the plaintiffs, two television reporters, one age sixty-six and the other age forty-seven.  Both claimed to have been terminated for reason of their age in violation of the FEHA.

The district court granted the defendants’ motion for summary judgment.  The Ninth Circuit affirmed the ultimate ruling, but clarified that the district had granted the motion for the wrong reasons.

As the Court explained, in order to establish an age discrimination claim under the FEHA, the employee must first establish a prima facie case of age discrimination.  He does so by demonstrating that he was (1) at least forty years old, (2) performing his job satisfactorily, (3) discharged, and (4) either replaced by substantially younger employees with equal or inferior qualifications or discharged under circumstances otherwise “giving rise to an inference of discrimination.”

Once the employee has established a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action.  If the employer satisfies the burden, the employee must then prove that the reason advanced by the employer constitutes mere pretext for unlawful discrimination.

The Ninth Circuit held that, on the employer’s summary judgment motion, when an employee seeks to establish the fourth element of the prima facie test based solely on statistics, the statistics must show a “stark pattern of discrimination.”  However, the employee need not address the employer’s proffered non-discriminatory reasons for the discharge.  The district court had granted the employer’s summary judgment motion based on an incorrect understanding that the law required the employee to do so.

The Ninth Circuit affirmed the ruling on other bases, finding that, once the employee established a prima facie case of discrimination, the employer had met its burden of establishing legitimate, non-discriminatory reasons for the termination, which the plaintiffs did not effectively refute.