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Age Discrimination Puzzler: What To Do When Two Applicants for Employment Appear to be Equally Qualified

August 15, 2014

By Michael G. McClory

In today’s trip to the (fictional) mailbag, The Bullard Edge considers a question submitted by Dean Wordman. He is the Dean of The Schule School, which is a private company that provides intensive language instruction courses to employees of its clients for the purpose of preparing these employees for foreign assignments. The Dean is concerned about age discrimination and the hiring process being used to choose between two solid candidates for a new faculty position. Here is his question. 

Dean Wordman’s Question:

Please help. I am in quite a row with our HR director over faculty hiring. For years Schule has worked with multi-national clients. They enroll US-based employees in our language courses in anticipation of foreign assignments. We teach all of the languages you might expect, such German, Spanish, French (my specialty) and Russian. While we have some full time faculty, most are adjuncts who teach a course every now and then but have other jobs as their main employment. 

Recently, in response to client demand, Schule has decided to add reverse classes: intensive English instruction for foreign employees who have been assigned to work in the US for a period of time. This is forcing us to add one more full time faculty who will handle the German-to-English program. We have narrowed the search to two adjuncts who both have been with Schule for five years. HR Director Bea Yunger favors Jay Newman over Ray Elder, my choice. Both have degrees in German and both have worked as high school teachers for five years. Yesterday, when we discussed the situation, Bea pushed for Newman (age 29), who she described as more “relatable” for students. I said that they both look good on paper, but Ray (age 62) lived in Germany during the mid-1990s. I am afraid that we might get sued for age discrimination if we offer the position to Newman. What do you think?  

The Bullard Edge's Response:

Schule might get sued if the position is offered to Newman. It also might get sued if the position is offered to Elder.  Whether you will get sued or not is the wrong question. The Bullard Edge has seen its share of meritless, even outrageous, claims.

The real questions are (1) whether Schule’s process has been merit based and (2) whether Schule is able to demonstrate that the process has been non-discriminatory.

Let’s look closer at five points.

First, as you clearly understand, age discrimination involves treating an applicant or employee less favorably because of his/her age in any aspect of employment (including hiring, compensation, training, job assignments, promotions, training, termination, layoff, and benefits). The federal Age Discrimination in Employment Act (ADEA) makes it unlawful to discriminate based on age against persons who are age 40 or older. The similar prohibition under Oregon state law applies to persons who are age 18 or older (see ORS 659A.030).

Second, except in cases where a preference must be given (e.g., veterans’ preference in public employment), the selection process should be based entirely on merits. If Newman and Elder were the same age you would select between the two based on merit. That should not change because Elder is older. 

Third, in selecting between Newman and Elder you are going to have to analyze and weigh their respective qualifications. You did not provide enough information in your question for me to do that. Is Newman more relatable based on student evaluations of his teaching during his adjunct days or because he is young? Does Elder’s experience of living in Germany make him the more qualified teacher? Evaluate their qualifications and choose the better qualified candidate.

Fourth, document your legitimate, non-discriminatory reasons for selecting one or the other. As noted above, the non-selected party may file a claim, which will force Schule to explain. Be ready for this. Even if a selection is made for the right reasons, an employer may nevertheless face liability if those reasons cannot be demonstrated. The Bullard Edge notes that the EEOC recently filed an age discrimination suit against a college that selected a younger faculty candidate. Whether the college is able to defend itself successfully will depend on its ability to prove that it made the selection for legitimate, merit based, non-discriminatory reasons.

Fifth, consider providing training for managers and personnel involved in the selection process. An effective training program helps managers and HR personnel learn how to recognize and address problems before they lead to workplace disruptions or litigation.

Best regards,

The Bullard Edge

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About the Editor

Be informed, engaged and sometimes entertained

Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it.  Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be. 

The blog is a forum for discussion about employment, labor and benefits law - new laws, proposed laws, case decisions and social events. Mike will share his views and invites you to respond.  Reader feedback is valuable and will be featured from time to time. Join the discussion with Mike and sign up for the Bullard Law Blog today.

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