Both federal and local statutes prohibit employers in Puerto Rico to discharge any
individual or otherwise discriminate against any individual because of such
individual's age. However the laws differ with regard to coverage and burdens
of proof imposed upon the employer and the employee.
Age Discrimination in Employment Act (ADEA) covers private employers of 20 or more
persons and the prohibition of discrimination is against workers who are 40 years of
age or older. Puerto Rico’s discrimination Law 100 covers all private employers and employees
of all ages.
Under ADEA- a plaintiff has the
burden of proof to show that, because of
his age, he was treated less favorably than other persons who were similarly
situated in all relevant respects. When a plaintiff does not have “direct evidence that the employer's actions
were motivated by age, he must show that: (1) he was at least 40 years old; (2)
met the employer's legitimate job expectations; (3) was fired or constructively
discharged; and (4) that age was not treated neutrally. If the plaintiff can
show these four elements, the burden of proof shifts to the employer who must provide
some legitimate, nondiscriminatory reason for the adverse employment action
suffered by the employee.
The employer only needs to provide a justifiable reason. It does not have to persuade the court that
it was actually motivated by the reasons offered. Once the employer provides the justifiable
reason, the plaintiff must then prove both that the defendant's explanations are
false and a pretext to hide discriminatory intent.
Law 100 states that an act of discrimination is presumed to have been
committed if it is done without good cause. See P.R. Laws Ann. Tit. 29, § 148. Since Law 100 does not define the term “good (or just) cause,”
Puerto Rico’s courts have used
local wrongful discharge Law 80 of May
30, 1976, to define the term. Generally, a “discharge made by mere whim or fancy of the employer or
without cause related to the proper and normal operation of the establishment”
will be deemed without just cause. P.R. Laws Ann. Tit. 29, §§ 185a-185k.
The purpose of a
presumption is to facilitate the employee to prove its claim; it does not relieve
the employee of the need to present evidence in its favor. In trial, the employee must begin presenting
evidence to show the basis for the age claim.
To activate the presumption of discrimination, the employee must present
evidence to show that that he was discharged, that it was done without just
cause and must provide some basic element of proof regarding his age claim. The
employee need not prove the discriminatory act itself. Once the employee
complies with this initial phase the burden of proof shifts to the
employer.
If the employer does not
present any evidence, the court will consider that the employee has proven his
discrimination case and the remaining issues will be limited to the assessment
of damages. If the employer chooses to defend itself, it has several
alternatives, it can present evidence to rebut the presumption or may present
evidence that there was no such dismissal (employee resigned) or that the dismissal was for cause or that despite the
dismissal being unjust, it was not discriminatory.
If the employer is
able to rebut the presumption of discrimination, the employee still has another
opportunity to prove discrimination by presenting evidence of discriminatory
intent (specific incidents, facts); now without the benefit of the
presumption.
