Age Discrimination Case Highlights Risks of Inconsistent Promotion Practices

In this case, three long-term employees sued Circle K Stores Inc. (Circle K) for discrimination, alleging that because of their age, they were denied the opportunity to apply for a regional director role that Circle K filled with a younger candidate after not posting the position internally. The lower court dismissed the case, finding the employees could not establish a prima facie case of age discrimination because they hadn’t applied for the promotion. The Ninth Circuit reversed this, holding that employees don’t need to apply for a position if the employer never made the opportunity available.

Because the case was brought under both the federal Age Discrimination in Employment Act (ADEA) and California’s Fair Employment and Housing Act (FEHA), this decision is particularly relevant to California employers.

When a Promotion Isn’t Posted

These three employees, all managers in their mid-50s, had long and successful careers with Circle K. Each had earned strong performance reviews, company awards and positive feedback from leadership. Each had expressed to Circle K an interest in advancing to a regional director position.

In early 2020, Circle K’s West Coast Regional Director position became vacant. According to the employees, Circle K typically notified its employees about open positions through email or its internal intranet. This time, however, Circle K bypassed that process by selecting a 45-year-old employee who already served as the Southeast Regional Director. None of the three plaintiffs were told the position was open or given an opportunity to express interest.

The three employees sued Circle K, alleging violations of both the ADEA and FEHA because Circle K illegally denied them the opportunity to apply for, and ultimately secure, the promotion to West Coast Regional Director because of their age.

Lower Court Sides with Employer

At the district court level, Circle K moved for summary judgment, arguing that the plaintiffs couldn’t make a prima facie case of age discrimination because they had never applied for the position they were denied.

To establish a prima facie case of age discrimination, plaintiffs generally must show that:

1. They were at least 40 years old;
2. They were qualified for the position they sought;
3. They were denied the position; and
4. The promotion went to a substantially younger person.

The district court agreed, ruling that applying for the job was a necessary element of a “failure-to-promote” discrimination claim and that, because the plaintiffs had not applied for the position, their case failed as a matter of law.

The court also determined that one plaintiff, who was a little over nine years older than the selected candidate, didn’t meet the Ninth Circuit Court’s “substantial age difference” threshold, which is typically 10 years or more.

Finally, the district court concluded that Circle K had a legitimate, nondiscriminatory reason for its decision — the selected candidate was the only person who expressed interest and already had regional director experience. Ultimately, the district court granted summary judgment for Circle K. The plaintiffs appealed.

Ninth Circuit Reverses — Failure to Post Position Can Be Discriminatory

On appeal, the Ninth Circuit disagreed with the district court. The Ninth Circuit held that “it makes little sense” to require an application when the employer declined to seek applicants and failed to announce that the position was available. As the Ninth Circuit explained, if the company’s decision not to post the position was itself motivated by age bias, then it could form the basis of a discrimination claim.

Age Gaps Under 10 Years Can Still Matter

The Ninth Circuit also clarified that an age difference of less than 10 years between employees isn’t automatically insignificant. While prior case law treats a 10-year age gap as “presumptively substantial,” the court emphasized that this presumption can be overcome with other evidence showing the employer considered age important in its decision-making.

In this case, the plaintiffs submitted declarations claiming that company executives made several age-related remarks, including telling one employee he was “too old for this business,” encouraging others to retire and expressing a preference for “younger people with MBAs.” The Ninth Circuit found that such statements, if believed by a jury, could show that age was a motivating factor in the promotion decision, even with a less than 10-year age gap.

Enough Evidence for a Jury to Decide

Finally, the Ninth Circuit examined whether there was enough evidence for a jury to conclude that Circle K’s stated reason for its promotion decision was a pretext for discrimination.

Circle K argued it selected the younger employee because he was the only person who expressed interest in the position and had prior regional director experience. The plaintiffs, however, presented evidence arguing those reasons were not credible.

Plaintiffs’ declarations indicated that the company executive involved in the promotion made or tolerated age-related remarks and encouraged older employees to retire. Witness statements also described the selected employee as an underperformer, calling into question Circle K’s claim that he was “uniquely suited” for the job. In addition, multiple declarations stated that Circle K typically posted open positions internally but failed to do so here, even though management knew the plaintiffs were seeking advancement opportunities. Taken together, the Ninth Circuit said that this evidence could lead a reasonable jury to find that Circle K’s explanation was uncredible.

Accordingly, the Ninth Circuit reversed the dismissal and sent the case back for a jury trial.

Practical Lessons for Employers

This case shows the importance of following consistent promotion practices and documentation.

• Consistency is key. Employers normally don’t have to use a specific hiring or promotion process, but they should follow whatever internal procedures they have in place. Departing from established procedures, especially when it disadvantages older or other protected employees, can look like discrimination even if that wasn’t the intent.
• “They never applied” isn’t always a defense. An employer can’t rely on the lack of an application when employees never had a fair chance to apply. Courts recognize that a failure to post or announce openings can itself be discriminatory if it prevents certain groups from being considered.
• Age gap guidelines are flexible. A difference of less than 10 years doesn’t automatically insulate an employer from liability. If there’s other evidence that age influenced the decision, the case can still move forward.
• Train managers on discrimination prevention. Comments about age or retirement can resurface years later as evidence of bias. Training managers to avoid these remarks and making decisions based on legitimate business factors rather than age or other protected classes is essential.
• Document business reasons clearly. When promoting, transferring or laterally moving employees, record the legitimate, nondiscriminatory reasons for each decision. That documentation can become critical evidence if an employer’s choices are ever challenged.
• Review policies. Ensure written promotion and job-posting policies match actual practice. If a company sometimes fills roles informally or by direct appointment, make sure the policy allows for that and is applied consistently.
• Consult legal counsel before bypassing standard procedures. There may be valid business reasons to appoint someone directly but skipping internal postings — particularly when experienced older employees are waiting for opportunities — can appear discriminatory. It’s best to consult legal counsel regarding these situations.