By Anne A. Marchessault
The Equal Employment Opportunity Commission did not discriminate against a 71-year-old investigator applicant by hiring a candidate who was more than 30 years younger but had attended law school, the commission decided July 15 (Hardwick v. Berrien, EEOC, No. 0120110520, 7/15/13).
Sybil Hardwick failed to prove that EEOC selected the younger candidate out of discriminatory animus, the commission said, because Hardwick's and the selectee's qualifications were not so different in weight that no reasonable person could have chosen the selectee.
In a decision signed by EEOC Acting Executive Officer Bernadette B. Wilson, the commission affirmed a finding of no discrimination under the Age Discrimination in Employment Act.
“An employer has discretion to choose among equally qualified candidates, so long as the selection is not based on unlawful criteria,” Wilson said. “In the absence of such evidence, the Commission will not second guess the Agency's assessment of the candidates' qualifications.”
The agency created a certificate of eligibles list from the pool of applicants. All 15 eligibles on the list were contacted for an interview, including Hardwick.
After conducting 13 interviews, the interview panel recommended a 35-year-old applicant to the selecting official because the applicant had attended law school.
Although a law degree was not required for the investigator position, the interview panel members agreed that having a legal education would help the selected applicant conduct detailed legal analysis for the job.
The selecting official approved the interview panel's selection without conducting any interviews or reviewing any application packets.
Hardwick filed a complaint against EEOC Chair Jacqueline A. Berrien, alleging that the agency discriminated against her on the basis of age.
The agency decided after an investigation that there was no discrimination, and Hardwick appealed.
The commission decided that Hardwick established a prima facie ADEA case of age discrimination because she was 71 years old when she applied for the investigator position; she was qualified for the position since she was placed on a certificate of eligibles list after undergoing an evaluation and referral process; she was not selected for the position; and the individual selected was 35 years old.
The agency articulated a nondiscriminatory reason for its selection decision, the commission said, when it asserted that it chose the candidate because she had attended law school and because it believed this degree made her the most prepared applicant for legal research and writing.
“While the interviewers acknowledge that neither attending law school nor having a law degree was a position requirement, each felt that law school students are required to conduct detailed legal analysis and this skill would be quite useful to the Investigator Position,” Wilson wrote. “The Commission finds that this explanation is an adequate, legitimate, non-discriminatory reason for Complainant's non-selection.”
Hardwick argued that she was more qualified than the person selected for the investigator position, and that the selectee's legal education did not establish that she had any specific training in employment discrimination. She said she felt her age factored into the decision because her interview “ended abruptly.”
Hardwick had a bachelor's degree, with a major in labor and employment and a minor in employment law, and a certification in paralegal studies. She had been employed as a caseworker for the Missouri Division of Family Services.
The candidate who was selected had worked as a legal assistant/senior case technician with the Office of Disability Adjudication and Review in Michigan, a collections program coordinator for the city of Elyria, Ohio, a law clerk for the Lorain County Legal Aid Society, and a probation intern for the Elyria Municipal Courts.
The commission found that the disparities in qualifications between Hardwick and the selectee were not of such significance that no reasonable person could have chosen the selectee for the position over Hardwick.
“Arguably each of the 13 candidates interviewed for the investigator position were equally qualified as each was placed on a Certificate of Eligibles list after undergoing an evaluation and referral process under the Merit Promotion Program,” Wilson said.
Hardwick failed to present persuasive evidence convincing the commission that the agency's articulated reason for its selection decision was pretextual.
Text of the opinion is available at /uploadedfiles/BNA_V2/Images/From_BNA_V1/News/Hardwick-EEOC-Ruling(2).pdf.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)