Many employers have lost failure-to-hire cases alleging age discrimination because a manager involved in the hiring process mentioned age at some point during the process.
The comment need not even be made to the job applicant’s face. Anything age-related said to a co-worker is fair game in court, too—and rest assured that such comments will surely come out when witnesses testify under oath.
Recent case: After the city of Greensboro passed over the oldest candidate for an electronics specialist position, the EEOC sued for age discrimination. It alleged that the man had scored significantly higher than other candidates on the city’s job test and had relevant experience.
The court heard testimony from the hiring manager’s co-worker, who said the manager indicated he did not want to hire the older applicant because he might retire shortly, forcing the whole hiring process to start all over again.
The court said the statement was direct evidence of age bias and ordered a trial. (EEOC v. City of Greensboro, No. 1:09-CV-576, MD NC, 2010)
Advice: Statements like the one the manager made are off limits. Instruct your hiring managers to refrain from saying anything to anyone about a candidate’s age and when he or she might retire. Turning down applicants because they might soon retire is illegal.
Final note: You may be wondering about courts’ hearsay rules when someone else reports an age-related comment. The court in this case made it clear that the reported comment wasn’t hearsay because it was coming from the employer’s agent—the individual to whom the company had entrusted the hiring decision. That’s a so-called statement against interest, which is an exception to the hearsay rule. Essentially, the comment is a confession of wrongdoing.