Ninth Circuit Adopts Rebuttable Presumption Approach for Age Discrimination Cases

In France v. Johnson, the Ninth Circuit Court of Appeal adopted the Seventh Circuit's "rebuttable presumption" approach in age discrimination cases. In so holding, the Court created a bright line rule that an employee alleging age discrimination need only show an age difference of ten years or more between himself or herself and his or her replacement to create a rebuttable presumption that the difference in age was substantial.  


The issue in France v. Johnson was whether France, a border patrol agent employed by the Department of Homeland Security (the Department), was discriminated against on the basis of his age. France, fifty four (54) years old at the time, applied for a newly created position as an operational Assistant Chief Patrol Agent, an assignment at a higher paygrade. France was not selected for the new position. France was the oldest of the twenty-four applicants who applied for the position. The four selected candidates were forty four (44), forty five (45), forty seven (47) and forty eight (48) years old.

France sued the Department alleging that the decision not to promote him was age discrimination in violation of the Age Discrimination in Employment Act (ADEA). The Department offered multiple non-discriminatory reasons for not promoting France, such as his lack of leadership and innovation, and moved for summary judgment. In response, France offered evidence that the Department's non-discriminatory reasons were merely pretext because his supervisor had stated a preference for younger employees and he was substantially involved in the decision-making process.

The district court granted summary judgement in favor of the Department because, although France had established a prima facie case of age discrimination, he failed to produce enough evidence to cast sufficient doubt on the Department's non-discriminatory reasons for not promoting him.  France appealed to the Ninth Circuit.


Under the existing legal framework, to prevail in a failure-to-promote claim under the ADEA, an employee must prove he or she was (1) at least forty years old, (2) qualified for the position, (3) denied the position, and (4) the promotion was given to a substantially younger person. Prior to France v. Johnson, the fourth prong of this analysis was treated with flexibility by courts and required a fact-based inquiry into what was considered "substantially younger".

The Ninth Circuit agreed with the district court that France had proven age discrimination but in reaching this conclusion, the court adopted a new bright line rule that an average age difference of ten years or more between the plaintiff and the younger employee is presumptively substantial. Conversely, an age difference of less than ten years is presumptively insubstantial. Importantly, the court noted that an employee can rebut the presumption by showing that the employer considered the plaintiff's age to be significant when denying the promotion.

Therefore, even though the average age difference between France (54) and the individuals who received the promotion was only eight years and thus presumptively insubstantial, the court held that France had successfully rebutted the presumption by producing evidence that the supervisor, who was influential in the decision-making process, expressed preference for "younger, less experienced agents."

What This Means To You

The adoption of the rebuttable presumption approach creates a bright line rule that will limit the protections for employers faced with ADEA claims where a ten-year or more age difference exists. In light of this decision, employers should take care to design and implement policies and institute trainings to mitigate the risk of such claims.