Yes, the title of this article is right. The EEOC recently issued a decision finding that it
— the EEOC — did not discriminate on the basis of age when it chose a 35-year
old applicant over a 71-year old applicant (and we will just tactfully ignore
questions about the EEOC’s having the ability to decide whether it engaged in
discrimination). Not only that, but the EEOC’s reasoning in its decision
provides great ammunition for an employer defending against charges filed with
the EEOC alleging discrimination in as to a hiring or promotion decision.
In Hardwick
v. EEOC , Ms. Hardwick, who was 71 years old at the time, applied for a job
as an EEOC investigator The EEOC instead selected an applicant who was 35 years
old on the basis that the younger applicant had attended law school, even
though a law degree was not required for the job. Ms. Hardwick herself was no
slouch applicant and met the qualifications for the job. She had an
undergraduate degree with a major in labor and employment and a minor in
employment law. She also had a certification in paralegal studies and had experience as a caseworker for the Missouri Division
of Family Services. Interestingly, Ms. Hardwick claimed she was also qualified
for the job because of “her experience as a pro se litigant.”
The EEOC concluded that the decision to hire the
substantially younger employee was not age discrimination because Ms. Hardwick
failed to prove that “no reasonable person” could have selected the much
younger applicant over her for the job. The EEOC also held that employers’
decisions as to “the assessment of the candidates’ qualifications” should not
be “second guessed.”
These are the same types of arguments employers
routinely make in responding to charges filed with the EEOC that allege
discrimination as to a hiring or promotion decision. So keep this decision in
your back pocket (or a nearby file) for the next time you are filing a position
statement with the EEOC.
This information is intended to be
educational and should not be considered legal advice on any specific matter.
