How to Defend an Age Discrimination Claim in Minnesota

Which laws govern an age discrimination claim against a Minnesota employer?

The MHRA and the ADEA both govern, and the MHRA reaches further. Minn. Stat. § 363A.08, subd. 2 makes it an unfair employment practice for an employer, because of age, to “discriminate against a person with respect to hiring, tenure, compensation, terms, upgrading, conditions, facilities, or privileges of employment,” and it covers any employer that is “a person who has one or more employees” under Minn. Stat. § 363A.03, subd. 16. Subdivision 2 of that section extends age protection to anyone “over the age of majority.”

The ADEA, at 29 U.S.C. § 623(a), bars an employer from acting against an individual “because of such individual’s age.” It protects only “individuals who are at least 40 years of age” under 29 U.S.C. § 631(a), and it reaches only an employer with “twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” under 29 U.S.C. § 630(b). A small Minnesota company outside the ADEA still answers to the MHRA. My page on age discrimination compliance for Minnesota employers covers prevention.

How does an age discrimination charge move through the Minnesota Department of Human Rights?

An employee may file a charge with the Minnesota Department of Human Rights or sue in district court, and the employer has a statutory duty to answer a charge in writing. Under Minn. Stat. § 363A.28, subd. 1, “Any person aggrieved by a violation of this chapter may bring a civil action as provided in section 363A.33, subdivision 1, or may file a verified charge with the commissioner or the commissioner’s designated agent.” The department serves “a copy of the charge and a form for use in responding to the charge,” and “The respondent shall file with the department a written response setting out a summary of the details of the respondent’s position relative to the charge within 30 days of receipt of the charge.” “If the respondent fails to respond with a written summary of the details of the respondent’s position within 30 days after service of the charge, and service was consistent with rule 4 of the Rules of Civil Procedure, the commissioner, on behalf of the complaining party, may bring an action for default in district court pursuant to rule 55.01 of the Rules of Civil Procedure.” I suggest checking the current text of § 363A.28 before relying on this period.

Under subdivision 5, “Charging parties and respondents shall be offered and may request an opportunity to resolve a charge through mediation or another alternative dispute resolution process.” After investigation, the commissioner decides whether probable cause exists. Under subdivision 6, if conciliation fails or would fail, “the commissioner may issue a complaint.” Minn. Stat. § 363A.33, subd. 1 allows a civil action “directly to district court,” and once a charge is on file it also allows suit “after 45 days from the filing of a charge pursuant to section 363A.28, subdivision 1, if a hearing has not been held pursuant to section 363A.29 or if the commissioner has not entered into a conciliation agreement to which the charging party is a signator.” The subdivision adds: “The charging party shall notify the commissioner of an intention to bring a civil action, which shall be commenced within 90 days of giving the notice.” I suggest checking the current text of § 363A.33 before relying on either period. Either side “is entitled to a jury trial” under subdivision 6.

I suggest checking first whether the employee filed in time, because both statutes set filing periods. Minn. Stat. § 363A.28, subd. 3(a) provides that an MHRA claim “must be brought as a civil action pursuant to section 363A.33, subdivision 1, filed in a charge with a local commission pursuant to section 363A.07, subdivision 3, or filed in a charge with the commissioner within one year after the occurrence of the practice.” I suggest checking the current text of subdivision 3 before relying on this period.

Under subdivision 3(b), “The running of the one-year limitation period is suspended during the time a potential charging party and respondent are voluntarily engaged in a dispute resolution process involving a claim of unlawful discrimination under this chapter.” The same paragraph provides that “A potential respondent who participates in such a process with a potential charging party before a charge is filed or a civil action is brought shall notify the department and the charging party in writing of the participation in the process and the date the process commenced and shall also notify the department and the charging party of the ending date of the process.” It adds: “A respondent who fails to provide this notification is barred from raising the defense that the statute of limitations has run unless one year plus a period of time equal to the suspension period has passed.” If you take part in mediation or another dispute resolution process with an employee before a charge is filed, I suggest giving that written notice, because without it the employer can lose the defense that the claim was filed too late. I suggest checking the current text of subdivision 3(b) before relying on this rule.

A federal ADEA claim runs through the Equal Employment Opportunity Commission (EEOC). Under 29 U.S.C. § 626(d)(1), “No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission,” and “Such a charge shall be filed” either “(A) within 180 days after the alleged unlawful practice occurred; or (B) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.” 29 U.S.C. § 633(b) covers “an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice.” I suggest checking the current text of § 626(d) before relying on these periods. Before the EEOC itself sues, § 626(b) provides that it “shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.” My page on responding to EEOC and MDHR charges covers the charge process across all protected classes.

How do courts decide whether age caused the decision?

Without direct evidence, Minnesota courts use a three-step burden-shifting test, and the employee keeps the burden of proving discrimination throughout. In Hoover v. Norwest Private Mortgage Banking, 632 N.W.2d 534 (Minn. 2001), a disability case under the MHRA, the Minnesota Supreme Court stated that plaintiffs may prove intent “by using circumstantial evidence in accordance with the three-part burden-shifting test set out by the United States Supreme Court in” McDonnell Douglas. The employee first makes a prima facie case. The employer then “must produce admissible evidence sufficient to allow a reasonable trier of fact to conclude that there was a legitimate, nondiscriminatory reason for the discharge.” Finally, “at all times the employment discrimination plaintiff retains the burden of establishing that the defendant’s conduct was based on unlawful discrimination.”

A performance dispute does not defeat the prima facie case: Hoover held that “a plaintiff need only establish that she met the minimum objective qualifications for the job.” The federal claim also carries its own causation rule. In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the U.S. Supreme Court held under the ADEA that “a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision,” and “The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.” Gross interprets the federal statute only.

Under the ADEA, a substantially younger replacement can be evidence of age discrimination even when the replacement is also over 40. O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), held that a replacement who is also over 40 does not end the claim, because “the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class.” The MHRA limits the weight of the bare replacement: Minn. Stat. § 363A.20, subd. 4 provides that “the employment of one person in place of another, standing by itself, shall not be evidence of an unfair discriminatory practice.”

What makes an employer’s reason hold up against a pretext attack?

A reason holds up when the records made at the time support it and the employer applied it the same way to younger employees. In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), an ADEA case, the U.S. Supreme Court held: “Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Hoover adopted that standard for MHRA claims, requiring the employee to show that the reason “is not only pretext but that it is pretext for discrimination.”

Hoover also shows the facts that can carry a claim past summary judgment. The employer cited compliance problems found in an audit of one employee’s files, yet “The auditor recommended that Hoover be warned, trained, and monitored, but instead Hoover was fired. Hoover was the only loan originator fired for having files that were out of compliance,” although audits of other employees found similar errors. The record also showed that Hoover had earlier “tied for the highest compliance rating” and that the audit was an “unprecedented review of all of Hoover’s loan files.” The court held that “This collection of evidence casts sufficient doubt on the truthfulness of Norwest’s proffered reason … to allow a rational finder of fact to conclude that the reason offered was pretext for a discriminatory discharge,” and it “remanded to the district court for further proceedings.”

Minnesota adds a written-reason rule that fixes the employer’s explanation early. Under Minn. Stat. § 181.933, subd. 1, an involuntarily terminated employee “may, within 15 working days following such termination, request in writing that the employer inform the employee of the reason for the termination,” and “Within ten working days following receipt of such request, an employer shall inform the terminated employee in writing of the truthful reason for the termination.” Subdivision 2 bars a defamation action based on that statement. I suggest drafting that letter from the decision file, because a later charge response that gives a different reason invites the falsity argument Reeves describes. My page on Minnesota’s whistleblower retaliation statute covers how the § 181.933 request fits into a retaliation claim.

What goes into the written response to an age discrimination charge?

The written response should state the actual reason for the decision, who made it, when, and the documents that support it, because the employee will read it. Under Minn. Stat. § 363A.28, subd. 9, “The charging party or the party’s representative may review the answer of the respondent to the charge submitted pursuant to subdivision 1.” Anything the response says can be compared against the termination letter, the personnel file, and later testimony.

I suggest building the response in this order, because each item answers a step of the Hoover framework:

1. The decision and its date, with the names and roles of the people who made it.
2. The reason given at the time, quoted from the contemporaneous record (the warning, the review, the restructuring memo).
3. How the employer treated younger employees with the same problem, or why no comparable employee exists.
4. Any facts that cut against an inference of age bias, such as who replaced the employee and that person’s age, presented as evidence rather than as a complete defense.

I also suggest suspending routine deletion of the email, chat, and personnel records connected to the decision as soon as a charge arrives, because those records are the employer’s proof of the reason.

How are layoffs challenged as age discrimination?

A layoff can be challenged two ways: as intentional selection of older workers, or as a neutral criterion that falls harder on them. For the second theory, Minnesota sets its own standard in Minn. Stat. § 363A.28, subd. 10: once the employee shows “a statistically significant adverse impact,” the employer “must justify that practice by demonstrating that the practice is manifestly related to the job or significantly furthers an important business purpose,” and even then “the charging party may prevail upon demonstration of the existence of a comparably effective practice that the court finds would cause a significantly lesser adverse impact on the identified protected class.”

The ADEA instead permits a differentiation “based on reasonable factors other than age” under 29 U.S.C. § 623(f). In Meacham v. Knolls Atomic Power Laboratory, 554 U.S. 84 (2008), the U.S. Supreme Court held that an employer “must not only produce evidence raising the defense, but also persuade the factfinder of its merit” when it defends a disparate-impact claim on that ground. The layoff in Meacham scored employees partly on “flexibility” and “critical skills,” and the Court acknowledged that its rule “makes it harder and costlier to defend” than a burden of production alone would. Subjective scores like those are the place I suggest testing a selection plan before the layoff, because the employer will have to prove they were reasonable.

A seniority system has its own Minnesota exception: under Minn. Stat. § 363A.20, subd. 5, section 363A.08 does not apply to “a bona fide seniority system which mandates differences in such things as wages, hiring priorities, layoff priorities, vacation credit, and job assignments based on seniority, so long as the operation of the system is not a subterfuge to evade the provisions of this chapter.” My Minnesota layoff playbook walks through selection and notice, and my page on cutting high salaries addresses cost-driven selections.

What rules apply to retirement and older executives?

Minnesota bars forced retirement below age 70 for private-sector employees, with a narrow exception for senior executives. Minn. Stat. § 181.81, subd. 1 states: “It is unlawful for any private sector employer to refuse to hire or employ, or to discharge, dismiss, reduce in grade or position, or demote any individual on the grounds that the individual has reached an age of less than 70, except in cases where federal statutes or rules or other state statutes, not including special laws compel or specifically authorize such action.” The executive exception allows “compulsory retirement of an employee who has attained at least 65 years of age and who for the two-year period immediately before retirement is employed in an executive or a high policy-making position if that employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit sharing, savings or deferred compensation plan of an employer, or any combination of these benefits which totals in the aggregate at least $27,000.” The federal exception in 29 U.S.C. § 631(c) uses a benefit threshold that “equals, in the aggregate, at least $44,000,” so an employer covered by both statutes should meet both. For an employer with 20 or more employees, the ADEA sets no age at which its protection ends. Section 631(a) provides that its prohibitions “shall be limited to individuals who are at least 40 years of age,” and 29 U.S.C. § 623(a) bars an employer “to discharge any individual … because of such individual’s age.” A mandatory retirement age that Minnesota law allows can therefore still violate the ADEA unless a federal exception applies. The executive exception in § 631(c) reaches only “compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position.”

The same subdivision adds a notice step: “When an employer intends to terminate an employee who is 65 years of age or older earlier than age 70 on the ground that the employee no longer can meet the bona fide requirements for the job or position the employer shall give the employee 30 days’ notice of that intention.” It also requires that “Every employer shall post in a conspicuous place a notice written or approved by the commissioner of labor and industry stating that the mandatory retirement age is age 70.” Under Minn. Stat. § 181.81, subd. 2, the court may award “reinstatement or compensation for any period of unemployment resulting from the violation together with actual and reasonable attorney fees.” Minn. Stat. § 363A.20, subd. 9 allows a mandatory retirement age under the MHRA only “if it is established consistent with section 181.81.”

How does retaliation change an age discrimination case?

Reprisal is its own unfair discriminatory practice, so an employer can defeat the age claim and still face liability for what it does after a charge or complaint. Minn. Stat. § 363A.15 bars reprisal against a person who “opposed a practice forbidden under this chapter or has filed a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” It states that “A reprisal includes, but is not limited to, any form of intimidation, retaliation, or harassment,” and it lists as reprisal by an employer to “depart from any customary employment practice; transfer or assign the individual to a lesser position in terms of wages, hours, job classification, job security, or other employment status; or inform another employer that the individual has engaged in the activities listed in clause (1) or (2).” The ADEA’s counterpart, 29 U.S.C. § 623(d), bars discrimination against an employee “because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.”

An employee can point to timing as evidence of reprisal, and documentation made before the complaint can answer it. In Hubbard v. United Press International, Inc., 330 N.W.2d 428 (Minn. 1983), a disability and reprisal case under the former version of the reprisal statute, the district court found that the employer had retaliated by discharging the employee “only 2 days after service of the complaint.” The Minnesota Supreme Court held that the timing “is sufficient to show retaliatory motive for purposes of Hubbard’s prima facie case.” It still reversed, because “the record clearly shows that UPI had first determined to discharge Hubbard long before any protected activity, that the decision to terminate was made after careful consideration of legitimate reasons before any charge of discrimination was filed, and that the decision was then carried out despite Hubbard’s having commenced this action, not because of it.” My page on Minnesota’s whistleblower retaliation statute compares whistleblower retaliation with MHRA reprisal.

What does an employer risk if an age discrimination claim succeeds?

Under the MHRA, a losing employer faces compensatory damages of up to three times the actual damages, possible punitive damages, a civil penalty, and equitable relief. Minn. Stat. § 363A.33, subd. 8 provides that when “the court finds that the respondent has engaged in an unfair discriminatory practice, the court shall order the respondent to pay an aggrieved party who has suffered discrimination compensatory damages, including mental anguish or suffering, in an amount up to three times the actual damages sustained,” that “the court may also order the respondent to pay an aggrieved party punitive damages pursuant to section 549.20,” and that “The court shall order any respondent found to be in violation of any provision of sections 363A.08 to 363A.19 and 363A.28, subdivision 10, to pay a civil penalty to the state.”

Subdivision 9 allows “the hiring, reinstatement, or upgrading of an aggrieved party who has suffered discrimination, with or without back pay,” and under subdivision 7 “the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs.” Under the ADEA, 29 U.S.C. § 626(b) lets the court grant “such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, including without limitation judgments compelling employment, reinstatement or promotion,” and it treats the amounts owed as “unpaid minimum wages or unpaid overtime compensation.” It also provides “That liquidated damages shall be payable only in cases of willful violations of this chapter.” These remedies are the measure I suggest weighing against the cost of a settlement.

What makes a release of an age discrimination claim enforceable?

A release of age claims must satisfy the federal waiver statute for ADEA claims and Minnesota’s rescission rule for MHRA claims. Under 29 U.S.C. § 626(f), “An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary,” and a waiver “may not be considered knowing and voluntary unless at a minimum” the statute’s listed conditions are met. Those conditions include that the agreement is “written in a manner calculated to be understood by such individual, or by the average individual eligible to participate,” that “the waiver specifically refers to rights or claims arising under this chapter,” and that “the individual does not waive rights or claims that may arise after the date the waiver is executed.” They also require that “the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled,” and that “the individual is advised in writing to consult with an attorney prior to executing the agreement.” For a release signed at separation, the employee must also be given “a period of at least 21 days within which to consider the agreement,” or, “if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees,” “a period of at least 45 days within which to consider the agreement,” and the agreement must provide that “for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired” (§ 626(f)(1)(G)). For a waiver requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer must also inform the employee in writing of “any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program” and of “the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program” (§ 626(f)(1)(H)). To settle “a charge filed with the Equal Employment Opportunity Commission, or an action filed in court,” the statute requires that “subparagraphs (A) through (E) of paragraph (1) have been met” and that the employee be “given a reasonable period of time within which to consider the settlement agreement.” In any dispute, “the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary.”

Under Minn. Stat. § 363A.31, subd. 2, “A waiver or release of rights or remedies secured by this chapter which purports to apply to claims arising out of acts or practices prior to, or concurrent with, the execution of the waiver or release may be rescinded within 15 calendar days of its execution, except that a waiver or release given in settlement of a claim filed with the department or with another administrative agency or judicial body is valid and final upon execution,” and “A waiving or releasing party shall be informed in writing of the right to rescind the waiver or release.” Subdivision 1 makes a release void if it “purports to waive claims arising out of acts or practices which occur after the execution of the waiver or release.” My pages on drafting a Minnesota severance agreement and ADEA waivers in settlements cover the drafting.

How should a Minnesota employer approach an age discrimination claim?

I suggest treating the claim as a test of the reason you gave and the records behind it, because that is what the burden-shifting cases examine. The MHRA reaches employers with one or more employees and protects any adult, and the ADEA adds a federal claim for workers 40 and older at employers with 20 or more employees. The employer controls five parts of the defense: a timely written response to the department, a reason that matches the termination file, consistent treatment of younger employees, no change in the employee’s treatment after a charge, and a release that meets both statutes. I can analyze a pending charge or a planned termination and tell you where the record is strong and where it is exposed. To start, email [email protected] with a brief description. I run a conflict check before I analyze any confidential documents, so I suggest waiting to send personnel files until that check is done. More on these issues is on my Minnesota employment law page.