(a) To refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to the employee's terms, conditions, or privileges of employment, otherwise lawful, because of such individual's age, when the reasonable demands of the position do not require such an age distinction; or

(b) To willfully utilize in the hiring or recruitment of individuals for employment otherwise lawful, any employment agency, placement service, training school or center, labor organization, or any other source which so discriminates against individuals because of their age.

(2) It shall be an unlawful employment practice for any labor organization to so discriminate against any individual or to limit, segregate, or classify its membership in any way which would deprive or tend to deprive an individual of otherwise lawful employment opportunities, or would limit such employment opportunities or otherwise adversely affect his or her status as an employee or would affect adversely his or her wages, hours, or employment.

(3) It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment or otherwise to discriminate against any individual because of such individual's age or to classify or refer for employment any individual on the basis of his or her age.

(4) It shall be an unlawful employment practice for any employer, employment agency, or labor organization to discharge, expel, or otherwise discriminate against any person because he or she opposed any unlawful employment practice specified in the Age Discrimination in Employment Act or has filed a charge or suit, testified, participated, or assisted in any proceeding under the act.

Annotations

1. Ultimate issue

2. Miscellaneous

1. Ultimate issue

Although the burden of production shifts between the plaintiff and the employer, the plaintiff retains the ultimate burden of persuasion, and the ultimate question is discrimination or retaliation vel non. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The ultimate issue in an age discrimination case is whether age was a determining factor in the employer's decision to take the adverse employment action. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

To survive summary judgment in a discrimination case, the nonmoving party must do more than simply create a factual dispute as to the issue of pretext; he or she must offer sufficient evidence for a reasonable trier of fact to infer discrimination. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

Once an age discrimination case has been fully tried on the merits, the focus is on the ultimate question of whether the employer intentionally discriminated against the employee and not on the adequacy of a party's showing at any particular stage of the trial. Although an employer's proffered reason for discharging an employee may not be truthful, that in and of itself does not prove a pretext; the pretext must be shown to be a pretext for discrimination. Synacek v. Omaha Cold Storage, 247 Neb. 244, 526 N.W.2d 91 (1995).

2. Miscellaneous

One isolated comment about retirement is not enough to demonstrate pretext for purposes of age discrimination. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

Retirement inquiries can sometimes be so unnecessary and excessive as to constitute evidence of discriminatory harassment. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

The McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), framework is a procedural device of order of proof and production, designed to force an employer to reveal information that is available only to the employer, i.e., any unstated reasons for the adverse employment action, as well as any discretionary factors underlying its decision. Oldfield v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d 278 (2017).

After the plaintiff proves a prima facie case of age discrimination in a suit brought under the disparate impact theory, the employer must show the employment practice is related to job performance or justified by job necessity. Although intent is irrelevant in a disparate impact theory, the plaintiff may then rebut the defendant's reason of business necessity by showing that an alternative practice lacking a discriminatory effect would satisfy the employer's legitimate interests. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

Although the ultimate burden of persuasion by a preponderance of the evidence at all times remains with the plaintiff, the method of proof is for the plaintiff to prove a prima facie case; if the plaintiff succeeds in so doing, the defendant has the burden of articulating some legitimate, nondiscriminatory reason for its action. Should the defendant succeed in so doing, the plaintiff must establish by a preponderance of the evidence that the legitimate reasons offered by the defendant were a pretext for discrimination. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

Following the lead of federal courts, a plaintiff may show pretext in an age discrimination case brought under the disparate treatment theory by showing either that the employment decision was motivated by a discriminatory reason or by showing the employer's stated reason is not worthy of credence. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

Following the lead of the federal courts, a plaintiff may establish a prima facie case of age discrimination by virtue of disparate treatment by showing that (1) she or he was in the protected age category, (2) she or he met the applicable qualifications, (3) despite those qualifications she or he was not promoted, and (4) other employees of similar qualifications, who were not members of a protected group, were promoted at the time plaintiff's request for a promotion was denied. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

In order to prove a prima facie case of retaliation, a plaintiff must show she or he was not promoted following protected activities of which the employer was aware. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).

To prove a prima facie case of disparate impact in an age discrimination suit under the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. sec. 621 et seq. (1982), the plaintiff must show (1) an outwardly neutral employment practice, and (2) a significantly adverse or disproportionate impact on the protected age group produced by the facially neutral employment practice. Allen v. AT&T Technologies, 228 Neb. 503, 423 N.W.2d 424 (1988).