Could ‘pre-selecting’ a job candidate be evidence of bias?

The federal Age Discrimination in Employment Act (ADEA) protects workers over age 40 from negative employment actions, such as being turned down for a job, fired, passed over for a promotion, or reassigned based on age. Many states have similar laws.

A pair of recent cases sheds some light on how they work.

The first case, from Michigan, involved Gregory Stokes, a longtime administrator for the Detroit Public Schools who had risen to the position of executive director of human resources. Toward the end of his six-month contract, he applied for what he viewed as a better position in the system. DPS interviewed three candidates, including Stokes, but hired a 28-year-old female instead.

Stokes sued the city for age discrimination under the ADEA as well as sex discrimination under Michigan’s civil rights law. The DPS said that Stokes had a poor interview and claimed he was a bad candidate for the position as executive director of “talent acquisition” because DPS had trouble recruiting new teachers while he was working in his previous role. The trial judge agreed with DPS and dismissed his case.

But a federal appeals court reversed, pointing to evidence that DPS had “preselected” the younger candidate all along. For example, Stokes produced a letter written by someone involved in the hiring decision before any interviews were conducted that stated the younger candidate should be offered the position. The court said was this enough to let a jury decide for itself whether DPS really made its decision based on its stated reasons or whether that was a smokescreen for discrimination.

Meanwhile, a recent Rhode Island case shows that an employee can proceed with an age discrimination case even where they weren't replaced by someone younger. There, plaintiff Elizabeth Cugini worked as community relations coordinator for one of the graduate schools at the University of Rhode Island. She was laid off in 2005 at age 53, but exercised her “recall rights” under her union’s collective bargaining agreement to move to a different position as URI’s assistant director for alumni relations.

Cugini’s new supervisor eventually decided she lacked the necessary skills or professionalism for the position. But Cugini claimed that the supervisor resented her being hired because of union seniority, denied her adequate training and harassed her because of her age.

Cugini filed a grievance. The supervisor then sent her a formal letter of reprimand. Cugini was ultimately told to accept another layoff with a one-year right to seek employment elsewhere at the university or be terminated.

She subsequently brought state and federal age bias and retaliation claims. The university argued that the claim should fail because Cugini could not show that URI replaced her with someone younger.

But a federal judge ruled that her claim could proceed.

Specifically, the judge pointed to evidence that the supervisor sought only negative comments from Cugini’s co-workers when putting together a performance review and that her younger co-workers were treated with less hostility.

The judge also rejected the university’s argument that Cugini never actually faced an adverse employment action, finding instead that the choice she was given might qualify as a “constructive discharge.”

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