Reprinted from the March 15, 2006 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Employees Showing Their Age:
A Manager’s Legitimate Business Interest?

Time and again, you’ve been warned to base employment decisions on legitimate business concerns. At first glance, hiring employees who can connect with customers, or planning for the company’s future by asking about retirement plans, seem like legitimate job-related moves. Upon closer look, those actions could land you in a legal bind if age improperly factors into your decision.

Improper Action #1
“Tyrese’s our man,” supervisor Kent Fowler confidently stated.

“Really?” asked the programmer director. “I thought Byron was a shoo-in after reading his résumé. He’s got over 20 years of radio production experience.”

“What he doesn’t have is knowledge of pop culture. During the interview, he couldn’t describe how he would create topics that would entertain listeners between the ages of 30 and 40, our target market. He failed to show an ability to meld pop culture with sports and displayed no familiarity with the show’s hosts whatsoever. Tyrese, on the other hand, displayed an amazing ability to connect with and appeal to our target audience, even though he’s only worked as an intern.”

Upon learning that the program director took Fowler’s recommendation to hire a 24-year-old with considerably less experience than himself, Byron Gloven filed an age bias complaint. The 46-year-old claimed that Fowler asked him specific questions about his ability to relate to a younger audience and whether the age difference would be a problem. Fowler countered that the questions were only two of several asked during a 20-minute interview designed to identify the best job candidate.

If Gloven’s lack of pop culture knowledge is what cost him the position, then why did the radio station try to assert that it hired the younger applicant because he had substantially more production experience than Gloven, asked a court. Since this was clearly not the case, a jury could conclude that the station’s stated reason was a pretext for age discrimination. Especially since some of the interview questions suggested that age “was a motivating factor” in the hiring decision.

Improper Action #2
“Like I told you last week and the week before, I don’t know when I’m going to retire,” snapped 72-year-old Nadia Gubovna. “Why do you keep asking me?”

“Because it’s my job to plan for the department’s future,” explained manager Milagros Vinnicombe. “Speaking of the future, I’d like you to teach Rasheed everything you know. I hired him to make sure we would have someone on staff to fill your position when you finally retire.”

Vinnicombe’s constant retirement questions and decision to hire Gubovna’s replacement before she retired were exacerbated by the fact that she was assigned additional work; her hours and benefits were reduced; and Rasheed played his radio loudly to distract her and Vinnicombe did nothing to stop him despite her complaints. That led Gubovna to believe that she was being pressured to retire because of her age.

In allowing Gubovna’s age-related hostile environment claim to proceed, a district court explained that “an employer may make reasonable inquiries into the retirement plans of its employees,” but these “retirement inquiries can sometimes be so unnecessary and excessive as to constitute evidence of” discrimination.

Action Tips

Both Fowler and Vinnicombe may have been trying to manage legitimate business issues, but their execution left something to be desired. Use the following advice to ensure that age-related issues don’t turn into age discrimination issues.

• Spell out essential job functions in job descriptions. Ask hiring questions based on them. Fowler should have stayed focused on questions on how Gloven would relate to the audience. Asking about how the applicant would create topics suitable for the station’s target audience was not age-related; asking whether the age difference would be a problem, was.
  
  
• Take age out of the picture. Ask all applicants to demonstrate how they would appeal to a target market comprised of 30-year-olds, not just those beyond that age range.
  
  
• Open up a dialogue about retirement by explaining your desire to plan for a smooth transition in the future. Keep it open by asking about retirement plans only once a year. Don’t keep pressing those who don’t plan to retire anytime soon for a reason why, or else you’ll send the message that you don’t accept their decision to continue working.
  
  
• Remember that a younger employee doesn’t always mean a longer-term employee. A younger employee could always jump ship long before an older employee decides to retire. So planning for staffing shortages should take into account all potential voluntary terminations, not just retirements.

More information about this publication/Order a subscription