If you don’t ensure that clearly qualified, post age-40 employees aren’t seriously considered for promotions, you could be risking an expensive lawsuit under the federal Age Discrimination in Employment Act (ADEA). That’s true even if you legitimately want to keep him or her in the old job because you need the expertise there.
If older, more experienced employees can show they were clearly better qualified than the younger employee you picked, the case will go to trial. And if it does, you’re at the mercy of the jury.
When making the first-choice list, take all clearly qualified applicants and rank them in order from best qualified to least qualified, without regard to age. Then offer the position to the best qualified.
Recent case: Hazel Conner, a 30-year employee, refused early-retirement incentives offered by her employer, Hoechst Celanese Chemical.
As a result of staff reductions, a position opened up that Conner had wanted and was qualified for. But the company selected a younger employee, instead. Conner claimed the company humiliated her by passing her over. She retired, then fired off an age discrimination lawsuit.
A lower court dismissed her case, reasoning that the company had several legitimate reasons for selecting the younger, less-experienced employee. Those reasons included that the firm didn’t want to lose Conner’s experience in her old job.
But Conner appealed and the 5th Circuit Court of Appeals (which includes Texas) reinstated her lawsuit. It concluded that she was clearly better qualified for the promotion than her younger coworker, especially since the woman who got the promotion often had to ask Conner for help. The case will now go to trial. (Conner v. Hoechst Celanese, No. 05-41487, 5th Cir., 2006)
Final tip: Warning bells should sound if you think the person you want to select for a promotion will need help from the older employee who also was up for promotion. That’s an indication the older employee is better qualified.
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