Q. We are reviewing two employees for a promotion, one is 55 and the other is 45. We are concerned that if we select the younger employee, we will be charged with age discrimination. Are we safer selecting the older employee, assuming both candidates are qualified for the job?
A. This is an area of the law in which federal law and Michigan law differ. The federal Age Discrimination in Employment Act has been interpreted by the U.S. Supreme Court not to protect age discrimination that favors the older employee vis-á-vis the younger employer. The purpose of the ADEA is to protect older employees against age discrimination.
Michigan’s law prohibiting age discrimination, however, prohibits any discrimination in employment based on age. Thus, “reverse age discrimination” claims are viable under Michigan law.
In response to your question, age cannot be the determining factor in Michigan. Length of service or some other criteria should be the basis for your decision.