California Allows Statistical Evidence To Make Case for Age Discrimination

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.