When it comes to evaluating applicants, you can consider factors like evidence of the employee’s commitment to the job and the likelihood he won’t stick around. That’s true even if it means you don’t hire an older applicant who worked for your organization in the past and received good reviews.
You can refuse to rehire him because you don’t think he’ll remain in the job longer than it takes him to find something better.
Recent case: John Galante, 58, worked for the Securities and Exchange Commission (SEC) twice during his career. He first left after five years as compliance officer to work at a stock exchange. Then, he worked for the SEC for an eight-year stint before leaving for a financial firm.
This last move clearly didn’t suit him, since he quit the financial firm after three months and reapplied at the SEC. He applied for 17 positions, but got no offers.
Galante sued, alleging age discrimination. The SEC argued that it used a valid criterion for rejecting him: that its managers were concerned Galante wasn’t committed to the agency since he had twice left to work elsewhere. It argued that someone with Galante’s history might quit as soon as a better job opportunity surfaced.
The court agreed and said Galante had no evidence the “job commitment” criterion was just an excuse for age discrimination. (Galante v. Cox, et al., No. 05-6739, ED PA, 2006)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Keeping Madison Square Garden's legal team fully employed ...
- Paper trail cuts both ways if it shows unequal discipline
- Best bet: Always investigate hostile environment claims
- Sued for age bias? Prepare to prove the employee wasn't performing the job