No Age Discrimination In Termination Involving Sexually Explicit Emails

Thursday, March 22, 2012

The Court of Appeals for the Third Circuit recently decided a case that found no age discrimination where four employees had been terminated for violating the company’s policy against emailing of sexually explicit pictures.

The case arose when the company began an investigation of one of the four employees for sexual harassment. In the course of the investigation, the company discovered that the four “regularly exchanged sexually explicit photographs.”

The company suspended a total of six employees. In determining the punishment, the company looked at the nature and volume of the emails, whether they were sent to individual inside or outside the business and it they had been sent to customers or vendors.

Four of the six were terminated. The four filed suit alleging age discrimination in the termination. The District Court dismissed their case for failing to show that they had been fired because of their age.

The Court of Appeals for the Third affirmed the District Court’s rulings. They examined the federal Age Discrimination in Employment Act claim (“ADEA”) and found that the employees had presented insufficient evidence of discriminatory intent by the employer. Merely because they were all in their 50s and 60s, and in a protected class, did not protect them from termination.

McDonnell Douglas Analysis

The Third Circuit noted that they examine discrimination claims under ADEA using the McDonnell Douglas test, where the plaintiff bears the burden of establishing a threshold case of discrimination.

The employee must show that: “(1) the plaintiff was a member of the protected age class; (2) he suffered an adverse employment decision; (3) he was qualified to hold the position; and (4) he was replaced by a significantly younger employee.”

The plaintiffs were able to demonstrate these four factors. The analysis then shifts to whether the employer had a “legitimate non-discriminatory reason for the adverse employment action.”


The employer claimed the job terminations were warranted, based upon violations of the company’s email policy, which prohibited the sending of sexually explicit materials. In the McDonnell Douglas analysis, the employee is finally required to prove that the employer’s stated reasons are “pretextual”, that is, that the employer is lying and the real reason for the terminations was discrimination based upon age.

Sometimes the employee has evidence that the employer engaged in prior discrimination against the plaintiff or others, and the court reviews the evidence in the context of the “overall employment” to determine if unlawful discrimination the real motivating factor.

No Compelling Evidence of Age Discrimination

Here, the plaintiffs were only able to offer what the court described as “stray remarks,” that were distant in time and unrelated to the email violation investigation that the employees claimed showed discriminatory intent.

Nor were they able to show that younger employees were treated differently from older ones.

This case teaches that employees may be within a protected class (based upon gender, age, nationality, religion, etc.), yet an employer may terminate them for clear violations of published employment policies, especially when no employer pretext is shown.

If you, your friends, family members, or co-workers have questions or concerns about employment discrimination or retaliation, please be sure to discuss the facts with an experienced and dedicated employment lawyer, the sooner the better.