UPDATE: Nov. 6, 2019: The U.S. Supreme Court has declined to review this case.

Dive Brief:

• The 1st U.S. Circuit Court of Appeals has upheld a $1.27 million jury award in a Cushman & Wakefield IT employee's age bias suit (Rinsky v. Cushman & Wakefield, Inc., No. 18-cv-1302 (1st Cir. March 8, 2019)).
• Yury Rinsky worked out the company's New York City office and worked remotely several days each week. After seeing his managing director transfer to the company's Miami office by simply making a verbal request, Rinsky asked if he could transfer to Boston, where he intended to move. Rinsky said his boss approved his move and told him the CIO would be in touch about arranging a cubicle for Rinsky in Boston, so he moved forward with his relocation. The company fired Rinsky, saying it was "unacceptable" that he left without notifying his manager or HR, and his boss later testified that he told Rinsky the transfer request would require approval from other managers and could take months.
• A district court said the evidence suggested that Cushman & Wakefield allowed Rinsky "to think that he had permission to transfer, waited until he moved to Boston and his replacement was trained, and then used the move as a pretense to fire him." The court noted also that Rinsky was the oldest member of his department and that he was replaced with a much younger employee. On appeal, the employer argued that Rinsky had not met the "but-for" standard required under New York state law for proving his age discrimination case. The 1st Circuit disagreed, pointing out that C&W had used the wrong standard and said Rinsky only had to show that age discrimination was a substantial factor — the "mixed motive" standard found in New York City law — in his termination, which Rinsky had done.

Dive Insight:

The New York City law applicable in this case employs a more liberal standard for proving age discrimination cases than state or federal law. It stands opposed to the New York State Human Rights Law and the Age Discrimination in Employment, which require plaintiffs to prove that "age was the 'but-for cause of the challenged adverse employment action," the court noted. In 2009, the U.S. Supreme Court scrapped a longstanding "mixed-motive" standard for age discrimination cases under federal law and replaced it with the much tougher "but-for" test. Before the High Court's decision, an employee only had to prove that age was one of the factors for an adverse employment decision; under the "but-for" standard, a plaintiff must show that age discrimination was the sole motivating factor for the adverse employment decision.

Congressional lawmakers have introduced a bipartisan bill — the "Protecting Older Workers Against Discrimination Act" — that would reverse the High Court's decision and returning to the previous standard.

Periodic compliance training for managers and HR and having HR thoroughly vet firing decisions can help prevent claims of age discrimination from occurring, experts previously told HR Dive.