HELP WANTED: Seeking Senior VP of Sales, ideally 45-52 years old. Wait, WHAT?!?

I was going to blame the tardiness of today’s post on technical difficulties. Except, the only thing that was technically difficult about it was trying to muster the energy to blog last night after spending four hours in the sun with my 6-year-old at the Eagles first preseason game. I’m happy to report that the Eagles won, and, to the delight of the intoxicated masses who hung around in the fourth quarter — most everyone but me and my son — Tim Tebow scored a touchdown.

Now, let’s talk about age discrimination.

It’s difficult to prove age discrimination under the Age Discrimination in Employment Act.

How difficult is it? So glad you asked. Other federal statutes like Title VII and the Americans with Disabilities Act require a plaintiff to show that a protected-class characteristic like race, religion, or disability motivated (i.e., played any role) an employment decision. With age discrimination, the bar is raised. That is, the individual alleging age discrimination has to establish that age was the “but for” factor. In other words, an individual would have to show that he wasn’t hired because of his age.

That burden notwithstanding, I don’t like this employer’s chances based on what I’m reading in this press release about a new ADEA lawsuit brought by the EEOC:

Seymour Midwest, a Warsaw, Indiana, hand tool manufacturing company, violated federal law when it rejected a 58-year-old executive upon learning that he was older than the company’s ideal age range of 45-52, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to EEOC’s suit, Seymour Midwest selected Steve Maril, from a pool of applicants for its senior vice president of sales position, to participate in an initial, email-based interview. In addition to questions about Maril’s experience and willingness to relocate, the company asked whether Maril was within its ideal age range of 45-52. When Seymour Midwest learned that Maril was older than its ideal age range, the company refused to hire him. 

So, not only was this age-related question allegedly asked in a job interview, it’s in an email!

A sufficiently-younger comparator

Now, you may be thinking to yourself, “Self? They’re looking for someone aged 45-52. Over 40 is a protected class under the ADEA. So, what’s wrong with that?” To which I say, “Check yourself, before you wreck yourself. A plaintiff alleging age discrimination doesn’t need to compare himself/herself to someone who is under 40. Rather, passing on a 58-year-old candidate for someone in 45-52 year old range — because of age — is age discrimination because the comparators are sufficiently younger.”

Image Credit: “SMPTE Color Bars” by Denelson83 – Own work. Licensed under CC BY-SA 3.0 via Commons.