The Most Interesting Case of Age Discrimination in the World

Dos Equis beer maker Cuauhtémoc Moctezuma Brewery doesn’t always discriminate, but when it does, it appears to do so on the basis of age. Last week, the beer maker announced that it was replacing its 77-year old most interesting man spokesman, Jonathan Goldsmith, with 41-year old French actor Augustin Legrand. The company explained that the move was motivated by a desire to attract younger drinkers, but denied that Mr. Goldsmith had “aged out” of the role.

Jonathan Goldsmith Age Discrimination CaseNonetheless, the statement remains an apparent admission of one of the most common forms of employment discrimination seen in American workplaces today. Nearly a quarter of all charges filed with the U.S. Equal Employment Opportunity Commission allege that an employee’s age motivated the adverse employment action made against them. Despite this disturbing trend, the Supreme Court has ruled that plaintiffs in age discrimination cases carry a heightened burden. Not only must they show that their age served as a motivating factor (as required in race and gender cases); employees alleging age discrimination must also prove that their age was the but-for cause of their termination, demotion, adverse promotion decision, etc.

While this change was certainly unhelpful, many employers have been disappointed to learn that it does not insulate them from liability. The law still recognizes obvious discrimination when it sees it and even creates a presumption of unlawful employment discrimination when, like Mr. Goldsmith, an employee: (a) is over 40, (b) gets fired, (c) despite performing well, and (d) gets replaced by a substantially younger individual. With this self-evident in Mr. Goldsmith’s case, it is Dos Equis’ burden to put forward a legitimate, non-discriminatory reason for firing its spokesman. To date, it has failed to do so. Replacing Mr. Goldsmith with a French actor 36 years his junior in order to attract younger drinkers is an admission that Mr. Goldsmith’s age was the problem. However, the company then follows that admission with an explanation that it is not the company that is discriminatory, but instead its customers are demanding a more youthful spokesman and the customer is always right.

The law has long been clear that pointing to a customer’s preference to excuse a discriminatory employment decision is no defense. To allow businesses to follow such customer preferences would only serve to entrench the stereotypes Congress sought to address in passing the Age Discrimination in Employment Act way back in 1967. Instead, employers must look only to nondiscriminatory factors in making its hiring, firing, promotion and compensation decisions. In doing so, customer biases and stereotypes are challenged and shown to be wrong and the arc of the moral universe can continue its long, arduous bend toward justice. Dos Equis appears to have gone in a different direction.

Where the employer fails to even articulate a legitimate reason for its decision, the jury is entitled to conclude that the employee’s age was the but-for cause of his termination. While harming Mr. Goldsmith may only make him more desirable (because, as the ads say, his blood is made of cologne), such a public display apparent age discrimination harms us all.

Stay thirsty for justice my friends.

Kevin P. Murphy

Kevin P. Murphy comes to Van Kampen Law from Littler Mendelson, consistently recognized as the nation’s leading management-side labor and employment firm. During his years with Littler, Kevin represented the nation’s largest employers in discrimination, retaliation, harassment, wage and hour, labor, and non-competition litigation, in both class action and individual cases. Kevin has taken several of these cases to trial before federal and state courts, while securing the dismissal of others through motion practice. Kevin also successfully resolved many other cases through formal and informal mediation and represented employers in federal and state agency investigations.