Age-related comments at hiring interview do not violate ADEA

Douglas Dunaway went to interview for a job at MPCC Corp. The interviewer, Urbinati, asked Dunaway his age and said he wanted an employee who would stay for 10 to 15 years. Dunaway was 65 years old. The interviewer further mentioned his own septuagenarian father and asked Dunaway if he was "capable of withstanding the vigors of the position." The company hired someone else for the position. Does Dunaway have a case?

The case is Dunaway v. MPCC Corp., a summary order decided on September 27. At first glance, it doesn't look good for the defendant. You shouldn't ask the job applicant's age at a job interview, and the 10-15 years statement sounds age-related. But the district court granted the employer's motion for summary judgment, and the Court of Appeals (Parker, Jacobs and Restani [D.J.]) affirms. Dunaway has no case.

The Second Circuit starts with the following legal principles:

Urbinati made several references to age, direct and indirect, when he interviewed Dunaway. The ADEA, however, “does not make all discussion of age taboo.” Raskin v. Wyatt Co., 125 F.3d 55, 63 (2d Cir. 1997). “[A]n employer’s concern about the economic consequences of employment decisions,” such as the likelihood of an employment candidate’s retirement within a short timeframe, “does not constitute age discrimination under the ADEA, even though there may be a correlation with age.” Criley v. Delta Air Lines, Inc., 119 F.3d 102, 105 (2d Cir. 1997).

More broadly, employers may consider factors that “are empirically intertwined with age” without violating the ADEA “so long as they are motivated by ‘some feature other than the employee’s age.’” Id. (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993)).

We then get into the meat of the analysis. The Second Circuit says "the questions were germane to the probable length of Dunaway's potential employment and his fitness to do the job. It is also undisputed that MPCC employed workers of similar age or older than Dunaway," and after plaintiff was rejected for the position, the company hired someone who was only one year younger than Dunaway. What this means is that Dunaway does not make out a prima facie case of age discrimination.

Could this case have gone the other way? Is the Second Circuit nitpicking in finding ways to explain away the age-related comments? I am sure plaintiff's attorney argued that the age of the workforce does not as a matter of law balance out the age-related comments at the interview. This case reminds me of another case from 2015 that similarly found a way around what would appear to be age-related evidence at the hiring stage, Chapotkhat v. County of Rockland, 615 Fed. Appx. 24 (2d Cir. 2015), which uses similar reasoning in affirming the grant of summary judgment. Neither Chapothat nor this case is precedential, but they give you a good sense of how the Court of Appeals sees these cases.