A 69 year old male who was terminated for allegedly engaging in sexual harassment did not survive summary judgment on his age discrimination claim in this Fifth Circuit case. Plaintiff claimed he was treated differently than younger workers, presented his own affidavit denying he engaged in the alleged harassment, presented a co-worker's affidavit that she did not "perceive his alleged comments as sexual harassment," and a statement from another worker that the person who fired plaintiff had called him an “old, gray-haired fart.” The later remark occurred more than a year before the termination and was deemed a stray remark. Because the issue is whether the company's articulated reason is a pretext for discrimination, not whether it is true or not, the Court found both the co-worker's perception and the plaintiff's denial insufficient to create a material issue of fact on the issue of pretext. As to the dissimilarity of treatment of the younger workers, plaintiff had failed to argue that below in opposing summary judgment, so the court did not consider that argument.

Often law firms force or "incentivise" partners into "senior status when they reach a certain age. One New York firm has been sued by the EEOC on behalf of a 79 year old partner forced to give up his equity interest at age 70, and allegedly paid less than younger partners despite comparable or better billings and collections. Key issue: Are partners employees for purposes of ADEA? The New York Law Journal has background here.

Plaintiff was reassigned as a principal of an elementary school with an immediate reduction of vacation benefits and a diminution of retirement benefits. A year later her salary was reduced by $17,000. Plaintiff sued, and the trial court granted the employer summary judgment despite the evidence of age related comments about the plaintiff, because Plaintiff failed to show any additional evidence that age played a role in the decision.The Tenth Circuit addressed many issues the first of which was the "but for" causation standard set out in Gross v. FBL Financial Services, Inc. The Tenth Circuit held the "but for"

standard does ‘not require [plaintiffs] to show that age was the sole motivating factor in the employment decision.’ (Citations omitted). Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as ‘age was the factor that made a difference.’