A 71-year-old woman applied for an investigator position with the U.S. Equal Employment Opportunity Commission in Savannah, Georgia. Stay with me, here. There’s not a punch line. She held a Bachelor’s Degree with a major in labor and employment and a minor in employment law. She also held a certification in paralegal studies. The Commission’s selection process narrowed the list of eligible candidates down to 15, including the 71-year-old. The Commission interviewed the finalists and offered the investigator position to a 35-year-old female.
The 35-year-old had a Bachelor’s Degree, with a major in political science and a minor in history. She also had a Master’s in Public Administration and had attended law school. Not surprisingly, the 71-year-old filed a charge of discrimination against the EEOC, alleging violations of the Age Discrimination in Employment Act of 1967 (the ADEA). The Commission investigated the charge, but found no evidence of discrimination. And the 71-year-old applicant appealed this decision. On appeal, the EEOC affirmed the decision. The reasoning supporting its decision is instructive to all employers.
Although the 71-year-old met the basic elements of an age discrimination claim, the EEOC reasoned that it provided an “adequate, legitimate, non-discriminatory reason” for not selecting the older applicant. The EEOC chose the younger applicant because she had attended law school and was therefore the best prepared to conduct legal research and writing—a skill useful for the investigator position. Unfortunately, the 71-year-old was unable to provide any persuasive evidence that this stated reason was really just an excuse or “pretext” for discrimination. On this point, the EEOC stated, “The balance of the evidence of record simply does not establish that the disparities in qualifications [between the older and younger applicant] were of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen [the younger applicant] over [the older applicant] for the job in question.” The moral of this story is that employers have the discretion to choose among equally qualified candidates, as long as the selection is not based on unlawful criteria (such as age).