Dive Brief:

• An unsuccessful candidate who applied multiple times for a full-time elementary teaching position in her local district was unable to make a case under the Age Discrimination in Employment Act (ADEA), even though she was older than 40 and passed over twice in favor of younger, less-qualified candidates (Romano v. Hudson City School District, et al., No. 18-3969 (6th Cir. May 6, 2019)). 
• The school district was able to show legitimate, nondiscriminatory reasons for choosing the other candidates: The plaintiff gave vague answers to interview questions, there were concerns about her classroom management skills and she needed extra support to teach certain curricula as a substitute for the district in the past, court documents said. Additionally, there was no evidence that age had factored into the decisions, according to the court.
• The plaintiff had some objective qualifications that successful candidates lacked, including a master's degree and substitute teaching experience, but she was not "plainly superior" to them and a reasonable employer could have chosen them over her, said the 6th U.S. Circuit Court of Appeals. For this reason, along with the lack of any other probative evidence of bias, the 6th Circuit upheld a district court's summary judgment for the school district.

Dive Insight:

In its ruling, the 6th Circuit cited an opinion from a sister court, which stated that courts must "not act as a 'super personnel department,' overseeing and second guessing employers' business decisions." Employers, in other words, have the right to make their own personnel decisions if there is some reasonable basis for them.

Romano also highlights the fact that qualifications are highly subjective. Assuming two or more candidates satisfy the minimum requirements for a given position, and there's not one obvious standout, employers have latitude to pick the candidate they deem the best person for the job — as long as their reasons are nondiscriminatory.

In situations like these, documentation can make or break an employer's defense, Allison West of Employment Practices Specialists said during a recent Society for Human Resource Management conference. This is true of interview notes as well as notes from other parts of the employment lifecycle.

When it comes to preventing age discrimination claims, experts have said that employers should be wary of language used in a job description that could be implicitly biased toward older candidates, such as the term "digital native." And while the ADEA protects both employees and job applicants from age discrimination, it is not clear whether the law contemplates, as other laws do, a disparate impact theory —​ actions that have a disproportionate effect on older applicants even though they are not directly discriminatory. The U.S. Supreme Court was recently asked to decide the question.