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Since the U.S. Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097 (2000), the pretext-plus standard of evidence is no longer a proper standard for the burden of proof under the Age Discrimination in Employment Act of 1967. A 54-year-old applicant, with 26 years of city management experience, was not hired for the position of city manager. Instead, the city hired an engineer in his 30s. The older applicant presented evidence that the city’s mayor and some councilmen had intended to hire a “younger” candidate, one they described as “not putting down roots.” ( Ratliff v. City of Gainesville, Texas, 5th Cir, 81 EPD �40,782) At trial, the district court failed to instruct the jury that if the applicant could prove that the city’s alleged nonbiased reasons for refusing to hire him were pretexts for age bias, the jury could infer that the city had discriminated against him on the basis of age. Rather, the court instructed the jury on the “pretext-plus” standard for the applicant’s burden of proof, meaning that he had to provide evidence of age bias in addition to proof that the city’s reasons were pretextual. The 5th U.S. Circuit Court of Appeals held that, since the Reeves decision, circuit precedent followed the “permissive pretext” burden of proof, which only required the applicant to present evidence of pretext in order to create an inference that the employer had failed to select him on the basis of his age. Consequently, the circuit court held that the trial court erred in instructing the jury as to the pretext-plus standard, and along with other findings, reversed the decision favoring the city and remanded the case for a new trial. � 2001, CCH INCORPORATED. All Rights Reserved.

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