Appellate Court Upholds Age Discrimination Verdict Against Broadcaster Marketing to Young Consumers
The federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 ("ADEA"), makes it unlawful for employers to discriminate against employees or applicants who are forty years of age or older. The aim of protecting older workers, however, can sometimes appear to be at odds with the legitimate business interests of businesses that actively cultivate younger markets for their services or products (e.g., businesses in the entertainment, media and fashion industries) In a recent decision that highlights this tension, the U.S. Court of Appeals for the Tenth Circuit, in Denver, Colorado, upheld a finding of age discrimination in favor of a television reporter whose contract was allowed to lapse based on the recommendation of a supervisor hired to attract younger viewers. Minshall v. McGraw Hill Broadcasting Co., 323 F.3d 1273 (10th Cir. 2003).
The employer in Minshall was a local Denver television station, KMGH. In order to boost the station's ratings, management hired Melissa Klinzing as its news director in 1996. As part of an initiative to increase viewership among persons younger than 40, Klinzing made several changes to the look of news broadcasts, and focused increased attention on the physical appearance of on-air personalities. The plaintiff, David Minshall, was a 17-year veteran investigative reporter with the station. At the time his final contract lapsed in 1997, Minshall was over age 50. When the station declined to renew his contract, he filed a lawsuit under the ADEA, contending that he was unlawfully ousted on the basis of his age as a result of the station's new age-based marketing initiative.
At trial, Minshall introduced evidence that two KMGH news anchors who were over age 40 had been transferred from the nightly 10 p.m. broadcasts and, on Klinzing's authority, replaced by an anchor who was under age 30. In addition, one of the station's weather reporters, who was also over 40, testified that Klinzing had given him increasingly undesirable assignments.
Most significantly, Minshall adduced testimony that Klinzing had told on-air personnel at varying points to "try to go with a younger look" as part of the station's attempt to reach new viewers through "a younger presentation, a more youthful presentation" and "sexier stories." One former anchor testified that Klinzing had referred to the weather reporters as "too f---ing old" for the new format. On another occasion, Klinzing allegedly declared that "old people should die." (The appellate court found that the latter comment had been admitted into evidence in error by the district court, because Klinzing made that comment in reference to her father, and she did not make the comment in her work capacity. This error was not sufficiently serious to warrant overturning the jury's verdict, however.)
In its defense, KMGH proffered evidence suggesting that the decision not to renew Minshall's contract was made for legitimate business reasons: in the year before his contract ran out, Minshall had allowed the name of a confidential source to be displayed on screen during a broadcast; he also appeared in public visibly intoxicated while receiving an award for his series on drunk driving. Management also pointed to the fact that Minshall had been given a six-month extension on his contract and a list of performance improvements he was required to make if he wanted a longer-term contract renewal. Various supervisors asserted that during this six-month period, Minshall repeatedly failed to attend staff meetings, was not proactive in suggesting news stories, and turned in unsatisfactory work, often at the last minute. On the other hand, three of Minshall's colleagues who had themselves complained of age discrimination testified that in their professional estimations, Minshall was a good reporter.
The jury returned a verdict in favor of Minshall, awarding him $212,326 in back pay and recommending that the district judge exercise his discretion to award $137,500 in front pay. Because the jury found that the employer was guilty of willful age discrimination, the court also awarded $212,326 in liquidated damages. KMGH was also required to pay $153,958 in attorney's fees. In all, Minshall was awarded damages in excess of $700,000. After the district court denied KMGH's motions to overturn the jury verdict or for a new trial, KMGH appealed.
The Tenth Circuit affirmed the district court's denial of the motions and upheld the jury's verdict. While acknowledging that cultivation of a younger demographic was not itself a violation of the ADEA, the Court ruled that, taken as a whole, Klinzing's comments provided an adequate basis for the conclusion that there was age-based animus behind the decision not to renew Minshall's contract. Although Minshall presented no direct evidence of discriminatory intent relating to the non-renewal of his contract, it was sufficient that he was able to "demonstrate a nexus between the allegedly discriminatory statements and the defendant's decision to terminate [him]." Moreover, the jury was entitled to make an inference of willful discrimination based the fact that, in the search to replace Minshall, Klinzing was instructed not to interview anyone younger than 40, the threshold age for ADEA protection. This instruction, the Court reasoned, suggested that the employer might have been attempting to conceal its discriminatory treatment of Minshall, and therefore that it "knew or showed reckless disregard for the matter of whether its conduct was prohibited by the [ADEA]," the standard for willful discrimination articulated by the Supreme Court in Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993).
The Tenth Circuit also ruled that while a plaintiff seeking to prove discrimination generally must rebut each and every non-discriminatory explanation proffered by the employer, "when the plaintiff casts substantial doubt on many of the employer's multiple reasons, the jury could reasonably find the employer lacks credibility." Accordingly, the jury was entitled to arrive at a finding of discrimination, even though Minshall had not refuted every one of KMGH's defenses. Because an appellate court reviewing a lower court's decision to deny a motion for judgment as a matter of law may not "weigh the evidence, pass on the credibility of the witnesses, or substitute [its] conclusions for that of the jury," the Tenth Circuit concluded that it had no grounds to overturn the verdict.
The result in Minshall and the substantial jury award should send a message to other employers who are actively seeking to market their product or service to younger consumers. While cultivation of such a demographic is not a violation of the ADEA, supervisors must guard against making stray comments, because those comments may substantiate a claim of discriminatory treatment even where the employer has a legitimate, non-discriminatory basis for the challenged employment action.