10-Year Age Difference Presumptively Insubstantial In ADEA Lawsuits

The Ninth Circuit Court of Appeals held in France v. Johnson that an average age difference of less than ten years between a plaintiff and replacement employees creates a rebuttable presumption in an age discrimination claim that the age difference is "insubstantial."

John France, age 54, was employed as a border patrol agent for the U.S. Department of Homeland Security and unsuccessfully sought a promotion to a GS-15 level position. The four candidates who were selected for the position were 44, 45, 47 and 48 years old. France filed a lawsuit alleging age discrimination in violation of the ADEA.

After the trial court dismissed the age discrimination claim, France appealed the case to the Ninth Circuit. A key issue was whether France was able to assert a prima facie case of age discrimination, which includes a requirement that, among other things, France was denied a promotion in favor of a "substantially younger person." The court held that the average age difference between the plaintiff and the selected candidates in...