Employer Learns Not to Question Older Applicant’s “Long Term” Prospects

When a recently retired employee wants to come back to work, there may be good reasons not to hire that person. The applicant’s age and “long term” prospects should not be among them, as one employer recently discovered.

After retiring from a career in the City of Toledo Water Department, 62 year-old Alan Rose decided that retirement was not for him. He therefore applied with the City for a water control room operator’s position, the same job he held when he retired. The City interviewed and tested eight candidates and Rose finished third in the process. The City offered the job to the second-ranked candidate who rejected it, and then hired the fourth-ranked candidate, who was 49 years old.

Later, the City hired another of the candidates, a 43-year old who ranked sixth in the process, to fill another opening for the same job. Rose then sued the City in federal court under the Age Discrimination in Employment Act (ADEA) claiming that he was rejected from the job because of his age. The City moved for summary judgement seeking early dismissal of the claim.

Don’t Say the Quiet Part Out Loud

In support of their position, one of the City officials testified that despite Rose’s experience, he was not hired because they did not consider him to be “long term” option because of his recent retirement. He admitted, however, that this was simply his assumption based on Rose’s previous retirement and that he had never asked he had never asked Rose about his long term plans. The City further justified their decision on the grounds that the two successful candidates had experience as operators and were working toward licensure, but acknowledged that Rose also had experience (obviously) and was already licensed.

The judge concluded that the evidence would permit a jury to conclude that the City assumed he would not work long term because of his age. This assumption, combined with the hiring of two substantially younger but lesser ranked candidates, raised an inference of discrimination that allowed him to defeat the dismissal motion and advance to trial.

Bottom Line

There certainly are good reasons for deciding not to rehire someone who recently quit or retired. You might doubt their commitment to an organization that they have already chosen to leave once before, or perhaps they were only a moderate performer and you are seeking someone more promising. If that is the case, it is a good idea to ask those questions and probe those issues during the hiring process.

You could even maintain a policy that bars reemployment for a certain period of time after a resignation or retirement to avoid situations like this one.

What you should not do is make assumptions based on an applicant’s age and then offer weak defenses when those assumptions are challenged in court.