Here’s a hint. It is someone over 40 years old. Need another hint? It is also someone who applied for promotion. Still stumped? It is someone who got the promotion instead of a substantially older applicant who wants to file an age discrimination allegation. EEOC and the courts have recognized that even when everyone applying for a particular promotion is over 40, disappointed candidates might have an age discrimination case if the selectee is over 40 but substantially younger than they are. Age discrimination does not require that the selectee (or selecting official) be under 40 years old.    

The LexisNexis folks just published a good article about this entitled “Age Discrimination Against Older Job Applicants.” Not long ago an IRS employee presented that kind of claim to the EEOC and here is what it said:

In this case, the record reveals that Complainant applied for and was deemed qualified for a GS-14 Operations Research Analyst position. The Agency did not select Complainant for the position but selected a 33 year-old African-American female and a 46 year-old Caucasian female. The selectees are the same sex as Complainant, and Complainant has not provided any evidence that would support an inference of sex discrimination. One of the selectees is a different race than Complainant, and both selectees are substantially younger than Complainant. See O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (holding that in age cases, the comparative need not be outside the protected group, i.e., under 40, but must be substantially younger than Complainant); Hammersmith v. Social Secur. Admin., EEOC Appeal No. 01A05922 (March 6, 2002) (while there is no bright-line test for what constitutes “substantially younger,” that term has generally been applied to age differences in excess of five years). Consequently, we find that Complainant established a prima facie case of age and race discrimination but did not establish a prima facie case of sex discrimination. See Cozetta Lee v. Geithner, EEOC No. 0120110521 (9/6/12)

As the Commission said, there is no bright line as to how many years younger the selected employee must be. Some courts have said three years, others ten. But if one of your members suspects she was pass over for promotion due to her age, don’t back away from the claim just because the selectee (or the selecting official) was over 40, 50 or even 60. Look for evidence of any of these traditionally accepted signs of age discrimination.

  • The grievant’s appraisal or interview scores recently dropped from earlier ones.
  • A manager with a role in the selection process has used age-related nicknames for the grievant, e.g., grandpa, etc.
  • The grievant was questioned about her “plans for the future” during the interview.
  • One of the interviewing panel members mentioned that the grievant is almost “overqualified” for the job.
  • The grievant has been asked to help train/orient the selected candidate to the new job.
  • The selecting official asked the grievant if she felt up to taking on the additional pressures of the vacant job.
  • The interviewing panel or selecting official made comments about looking for candidates with fresh ideas, who can bring new blood and energy to the job, or who are familiar with the latest ideas circulating in the graduate schools.

And even if none of those factors are present, don’t forget that if the grievant can show that she was “plainly superior” to the selectee, she has a very good chance to win. See “The Plainly Superior Promotion Grievance Theory.”

If you file an age discrimination allegation you are likely going to hear EEO Specialists and the agency lawyers talking about what you have to prove to win. The courts are currently dealing with the issue for federal employees. Some demand that you prove that “but for” the age issue the grievant would have been selected. Others will find discrimination if it was one of several important reasons the employee was not selected, and still others require only that the employee prove that the agency’s stated reason for not selecting the employee is unlikely to be true. None of that debate should get in the way of filing an age discrimination charge or grievance. It can wait until later when lawyers get involved and you can get more specific advice from your own attorney.


About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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