Q. As a small college, we employ quite a few adjunct instructors, especially for night classes. They work on a term-to-term contract for specific courses. One instructor got a very poor review and we’d like to ease him out. He’s making noises about age discrimination. If we don’t renew his contract but instead use a younger, fresh-out-of-grad-school instructor, could he have a case? — R.H., Kansas
A. Possibly. Not renewing an employee’s contract is a material adverse employment action that can spawn a discrimination claim. If he claims age discrimination, proof that the position was given to younger employees would be an element of his claim. The burden would then shift to you as the employer to articulate a legitimate business reason for your hiring decision. To do so, it would be wise to gather as much objective evidence as you can to establish that this instructor was performing the position poorly and that this performance problem—not his age—was the reason his contract was not renewed.
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