The Age Discrimination in Employment Act (ADEA) prohibits an employer from failing to hire or promote an individual who is at least 40 years old because of that individual’s age.  Once the individual establishes a prima facie case of discrimination – by showing that she was in the protected age group; that she was otherwise qualified for the position; and that a younger person was hired to fill the position – a legal presumption arises that the employer unlawfully discriminated against that individual.  The burden then shifts to the employer to provide a non-discriminatory reason for the company’s failure to hire.  The employee can demonstrate that the proffered reason was a “pretext” for discrimination by presenting evidence indicating that age was a determinative factor in the adverse employment decision.

When an employer fails to hire or promote an over-40 year old employee, and contends that the selected (but younger) candidate was more qualified, a comparative analysis of the qualifications is necessary to determine whether a jury could disbelieve the employer’s proffered reason for its decision.  Often, however, an employer’s evidence consists of subjective evaluations of the candidates’ qualifications.  Because such subjective information can be easily fabricated after-the-fact., courts typically will not allow an employer to rely exclusively on subjective criteria to avoid a finding of pretext.

Recently, the 8th U.S. Circuit Court of Appeals affirmed a lower court’s summary judgment in favor of a school district that relied largely upon subjective criteria to support its failure to promote a 60 year old teacher.  Wingate v. Gage County School District, 8th Cir., No. 07-3492, June 16, 2008. 

In that case, Nancy Wingate worked as a part-time teacher for the Gage County School District from 1977 until 2001.  In 2001, Wingate decided to return to teaching on a full-time basis, and unsuccessfully applied for four different full-time positions over the next three years.  In 2004, she applied for two more full-time positions, but was not interviewed for either of them.  The positions were filled by a 28-year-old and a 31-year-old.  The District contended that it did not interview Wingate because she was only an “average” teacher, had trouble handling large groups of students, and that the District would have had to hire a replacement to fill Wingate’s part-time position. 

Wingate filed suit, alleging violation of the ADEA.  In response, the District filed a motion for summary judgment.  Because the District conceded that Wingate was able to set forth a prima facie case, a legal presumption arose that the District had discriminated against Wingate.  The District then was required to provide a non-discriminatory reason for its actions.  To satisfy its burden, the District asserted that the individuals hired were “better qualified” for the positions, and that Wingate was only “average,” while the District endeavored to hire only “above-average” teachers.  In addition to these subjective assertions, the District pointed out that the jobs applied for by Wingate involved large groups of students, and that her prior experience was with small groups of students.  Further, the individuals hired had special education certification or experience, and Wingate did not.

Wingate presented no evidence sufficient to refute the District’s proffered reasons for not hiring her, other than to assert that because many of the reasons were subjective, they were simply a pretext for discrimination.  However, the Court disagreed, stating that although is has cautioned against the use of subjective criteria, it has not “outright prohibited its use.”  The Court noted that the District did not rely exclusively on subjective criteria, but also used legitimate educational considerations in making the hiring decisions.  Stating that the use of subjective criteria does not automatically give rise to an inference of age discrimination, the Court upheld the dismissal of Wingate’s case.

Employers should not interpret this decision as an invitation to base hiring decisions solely on subjective criteria.  Instead, hiring decisions involving a subjective analysis also should include some objective criteria or other business-related considerations in order to avoid the possibility of a finding of “pretext.”


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