Statistical evidence may be used to establish a prima facie case of age discrimination under the California Fair Employment and Housing Act (FEHA).
In the Ninth Circuit case of Schechner v. KPIX-TV, two television reporters were terminated as part of an attempt to cut their stations’ budget. All five on-air terminated employees were over 40 years of age. Two employees filed suit alleging age discrimination. At trial, the plaintiffs used a statistical expert to support a claim for age discrimination. Plaintiffs’ claims were dismissed by the district court.
California follows the same burden-shifting framework followed under federal law. The Ninth Circuit held that statistical evidence showing a stark pattern of age discrimination would meet the criteria to state a claim. The burden would then shift to the employer. The Court cautioned that not all-statistical evidence would be enough to establish a claim for age discrimination. The statistics must be strong enough to show a stark impact on the protected class.