EEOC Decides It Didn’t Discriminate in Hiring Much Younger Applicant With a Law Degree
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.”
Selectee More Than 30 Years Younger
In January 2010, when Hardwick was approximately 71 years old, she applied for an investigator position in EEOC’s Savannah, Ga., local office.
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.
Law School Legitimate Selection Factor
“For Complainant to prevail,” Wilson said, “she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action.”
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.”
Comparing Experience Doesn’t Show Bias
The commission affirmed the agency’s finding of no discrimination, saying that Hardwick failed to present evidence of discriminatory animus in the selection process.
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 http://about.bloomberglaw.com/files/2013/07/Hardwick-EEOC-Ruling.pdf.