You’ve Got Great Experience, Sir, But You’re Too Old

Jaclyn-Tyndorf-photo-265x300In these turbulent economic times, securing employment can be a steep and uphill battle for job hunters, who are up against scores of other candidates all vying for the same position. Common sense dictates that those with the most amount of relevant experience should be at the top the list for consideration. And as federal law dictates, race, gender and age should be of no consideration at all for jobs in which race, gender and age don’t matter.

Sometimes, of course, these considerations do come into play.  A man isn’t going to get a modeling job to frolic on a beach in a bikini for the 2012 edition of the Sports Illustrated Swimsuit Issue. A white woman won’t likely be hired to serve as president of an Association for Asian-American males…And then there’s age.  If the applicant for a job has great experience but the job involves manual labor, can age be taken into consideration?

Consider the case of two male electricians, both experienced in their trade. Upon applying for a “journeyman lineman” position their union and before meeting their would-be employer, they were both told, off the bat, that they were just too darn old.

A collective bargaining agreement requires Western Energy Services of Durango, Inc.(WESODI) to follow a union referral process for hiring. In August 2009, when the telecommunications and power line construction company had an available lineman position, it contacted a local union for the name of the next available member with the required skill sets. Eric Camron, then 72, was next in line.

After being told by his union about the job, Mr. Camron went to his local union office where a WESODI employee asked to speak to him on the phone. Mr. Camron was told that the job was “go, go go”, and that he would have difficulty keeping pace with the younger workers. WESODI hired a 24 year-old with less experience, instead.

One month later, the same thing happened to Dennis Thomas, then, 61, and for the same reason. A 28 year-old was hired for that position, again with less experience.

Messrs. Camron and Dennis are suing in New Mexico federal court. The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal laws making it illegal to discriminate against an employee or job applicant on grounds including age, and it is representing the two electricians.

The men want WESODI to stop discriminatory employment practices and to pay them back pay and money damages. While The Durango Herald discussed the men’s lawsuit, the paper didn’t discuss the requirements of proving a case of age discrimination, and whether our electricians will be able to meet these requirements. LASIS will.  

The Age Discrimination in Employment Act of 1967 prohibits an employer from discriminating against a job applicant or employee based on his age. This Act protects people who are at least 40 years old, and applies to employers with at least 20 employees.  The Act covers hiring, firing, benefits, and promotion.

Per the 1973 Supreme Court case McDonnell Douglas Corp. v. Green, age discrimination claims are analyzed according to a three-part process. In hiring and promotion cases, the first part requires that a plaintiff have evidence that is more likely than not to prove that he was: (1) within the protected age group of the Act; (2) qualified for the position; (3) negatively affected by the employer’s decision; and (4) passed over for a younger person who was hired for the position.

After a plaintiff meets that requirement, the burden shifts to the employer to show a nondiscriminatory reason for not hiring or promoting the plaintiff.

If this burden is met, the plaintiff can keep his case alive by showing the employer was motivated by a discriminatory reason or that age was at least an influential factor in the employer’s decision to hire a younger candidate. Then it’s up to the jury to decide if the employer discriminated illegally based on age.

In a 2010 District of Columbia district court case, a 55 year-old plumber who wasn’t hired for a particular job sued a company for age discrimination, alleging that the CEO had expressed concerns about whether he could physically perform the job responsibilities. The CEO hired another candidate whom he later said he chose because he was familiar with the other candidate’s work. The court held that because the person ultimately hired for the position was only five years younger than the plaintiff, age was likely not the deciding factor, and the plaintiff lost.

In a 1993 District of Columbia district court case, the court stated that at times, demonstrating a substantial difference between the age of the person hired or promoted and the age of the person who didn’t get the job or was fired may sometimes be enough to point to age discrimination. In that case, the plaintiff was passed over for promotion in favor of someone 17 years younger, which the court found sufficient to suggest that age played a role in the employer’s decision.

In the case of our journeymen electricians, the men may have established a solid age discrimination case. Both men were members of a protected group (potential employees over the age of 40) and sufficiently qualified for the positions… and were passed over for candidates more than 20 years their junior.

As a result, the company will have to show that it had other reasons for not hiring the men. An employer in a Texas district court case was found to be acting lawfully when it wouldn’t hire pilots over 60 to fly its corporate planes. This decision was based on the company’s reliance on a federal agency’s rule prohibiting pilots from flying commercial planes after 60 due to safety concerns.

WESODI CEO Kenny Robinson told The Durango Herald that the company doesn’t “discriminate for any reason and especially not for age. It’s very common for well over 40 percent of our workforce to be in the protected age group.”

That’s nice.  It doesn’t affect this case.  WESODI needs to show that reasons other than age factored into its not hiring these two electricians.

It will have a difficult time doing so.

The young men hired for the jobs had far less experience than both Mr. Camron and Mr. Thomas, and both plaintiffs allege that a WESODI employee told them on the phone that they were too old.

I called WESODI and learned that generally, WESODI journeyman linemen generally work in all types of weather, both above and below ground, installing and removing transformers, digging, and putting conductors in the trenches.  Some jobs involve climbing poles.

We do not have detailed information about the physical demands of the WESODI jobs that Mr. Camron and Mr. Thomas applied for, or about the physical fitness of either of the plaintiffs.  But unless the company can provide a legitimate reason for not hiring Mr. Camron and Mr. Thomas, the court will probably pull the plug on WESODI’s practices.

This blog originally appeared in Legal as She Spoke, a project of the Law and Journalism track at New York Law School, on October 28, 2011. Reprinted with permission.

About the Author: Jaclyn Tyndorf is a (2L) majored in Broadcast Journalism at Syracuse University. She is active at New York Law School, and is a member of the Media Law & Policy Center, the Institute for Information Law and Policy, and the Program in Law & Journalism. Jaclyn spends her free time exploring the neighborhoods of New York City and enjoys attending New York Jets games.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.