There is a common belief in the marketplace that it’s harder to find a job if you are over 50. However, it’s difficult to establish whether that’s true, and there are many advantages to hiring a mature employee. But a recent case decided by the U.S. 8th Circuit Court of Appeals (whose rulings apply to all Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota employers) highlights that certain stereotypes about older workers may persist. 
Hiring process looks a little shady
Lieutenant LeRoy Hilde was the second-highest-ranking employee at the Eveleth (Minnesota) Police Department. When the chief of police announced his retirement in 2012, Hilde, who was 51 years old, sought to become the new chief. A city police officer with at least three years of service is retirement-eligible at age 50.
The three-member commission that hires and promotes the city’s police officers conducted a search of both internal and external candidates for the position, even though all promotions had occurred internally in the past. The commission created a hiring process that focused on three criteria: weighted years of service, training and employment, and an interview. Each commissioner was to score each candidate independently.
When the weighted years of service and training and employment components were completed, Hilde, who was also the choice of the outgoing chief, stood as the highest-scoring candidate with 74 points. The next highest applicant, a 43-year-old external candidate, scored 43 points. Then came the interviews.
At this point, the story becomes a bit murky because there seem to be three different versions of what happened at the interview stage. Each commissioner gave the external candidate a perfect score of 100 and Hilde a score of 69. Thus, the applicants were tied with 143 points apiece after the interviews. While two of the commissioners stood by the explanation that the identical scores were merely coincidental and reflected the independent judgment of each commissioner, one commissioner acknowledged that the scores were adjusted after the fact to create the tie.
Even though the process hardly looked fair and impartial, there was nothing apparently unlawful about it. Each commissioner was certainly allowed to favor one candidate over another and even discuss and agree among themselves who was the strongest candidate. That was precisely what the process was supposed to encourage. But the legality of the city’s hiring process wasn’t so clear-cut.
Spurned candidate claims age discrimination
After he lost the chief job to the external candidate, Hilde sued the city, claiming age discrimination. The case eventually ended up before the 8th Circuit. During the litigation, at least one of the commissioners admitted that Hilde’s eligibility for retirement might have been a consideration because the commission was looking for someone willing to make a “long-term commitment.” This is where the city’s decision making may have run afoul of the law.
The city argued that an employee’s retirement eligibility is evidence of his lack of commitment to the job, which is a legitimate concern. The court of appeals noted that while the words “retire” and “age” are not always synonymous, retirement eligibility is correlated with age in this case because eligibility for retirement is dependent on the employee reaching age 50. However, if an employer assumes an employee isn’t committed to the job merely because his age makes him retirement- eligible, that’s age stereotyping.
Using retirement eligibility to presuppose either lower productivity or less dedication to the job may not necessarily represent an accurate judgment about a particular employee. In this case, the commissioners never actually asked Hilde about his commitment to the job or his plans for retirement. Without some independent evidence suggesting that he wasn’t willing to remain in the position for the “long term,” the city’s assumption that he wasn’t committed to the long term permitted the jury to infer that the city improperly made that assumption on the basis of age and thus committed age discrimination. Hilde v. City of Eveleth, Minnesota (8th Cir., February 5, 2015).
Takeaways
Although this case recognizes the legitimacy of using “long-term commitment” as a job criterion, it also highlights the danger in presupposing a lack of commitment based on an individual’s protected class. This was an age discrimination case, so the lack of commitment was assumed because of the candidate’s retirement eligibility. But stereotyping someone as not being in it for the long haul could easily have been based on sex or pregnancy. After all, it wouldn’t be difficult to envision decision makers considering the hire or promotion of a pregnant woman and presupposing the risk that she will want to stay home and raise her child rather than commit to the job.
To be sure, an applicant’s long-term commitment to the company or the job is a legitimate concern. Employers may uniformly ask applicants whether they are committed to a long-term run at a particular job. However, you shouldn’t single out candidates who fall into protected classes. Once you’ve asked each applicant about his commitment and received an answer, you can assess all the responses. But to not ask the question and then presuppose an unfavorable answer creates significant risk.
Robert Kaiser is a partner with Armstrong Teasdale LLP, practicing in the firm’s St. Louis, Missouri, office. He may be contacted at rkaiser@armstrongteasdale.com.