Good case on age discrimination defense using evidence of hiring of other older employees

Shannon P. Duffy writes in The Legal Intelligencer

“‘Subsequent Good Act’ by Employer Admissible

Company sued for age discrimination can show it hired older worker.”

“In an age discrimination suit, the defendant company may present evidence that it hired another older worker more than a year after the plaintiff was fired because such evidence is relevant to the issue of the employer’s alleged discriminatory intent, the 3rd U.S. Circuit Court of Appeals has ruled.”

“In Ansell v. Green Acres Contracting Co., a unanimous three-judge panel found that trial judges have the discretion under Federal Rule of Evidence 404(b) to allow such evidence of a “subsequent good act.”

The article contains a good, fairly detailed summary of the arguments opposing admissibility of such evidence raised by the plaintiff — and rejected by the court.

This case may not be groundbreaking, but it is nonetheless noteworthy for highlighting a potentially useful line of defense.

Rather than fighting attempts by a plaintiff to introduce evidence of terminations of other employees in a protected class, if an employer has good counter-evidence of favorable treatment, using such evidence in rebuttal may be quite potent.

Conceivably it would paint a very persuasive defense picture for a jury in an age case to be shown a parade of gray-haired employees testifying to how the people who allegedly committed age discrimination hired them, promoted them, gave them good evaluations and raises, etc.

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