The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on their age. A recent decision from the Fourth Circuit Court of Appeals underscores the importance for employers to make personnel decisions, such as the promotional decision involved in this case, for legitimate non-discriminatory reasons. Bandy v. City of Salem, No. 21-1565 (4th Cir. Feb. 13, 2023).
Tammy Bandy worked for the City of Salem, Virginia as a part-time box office cashier. She previously held a variety of jobs for the City and had spent some time out of the workforce. In January 2019, Bandy applied for a booking coordinator position at the City’s Civic Center. After the City hired a younger candidate, Bandy resigned from her job and sued the City, alleging that Salem did not promote her based on her age in violation of the ADEA.
Bandy was 52 years old when she applied for the booking coordinator position. The role involved advertising the Civic Center for rental as event space and managing the Center’s reservations, preparing contracts, invoices, and financial records. Bandy made it through the initial screening and was one of six candidates interviewed by the three-member hiring committee. The City did not hire Bandy because of her relative qualifications and her interview performance. She apparently did not answer questions to the committee’s satisfaction and was not keen on the advertising and marketing components of the job.
The committee selected a 25-year old male for the position after concluding that the individual’s education, experience, interview preparation and performance, and positive attitude better qualified him for the position. The hired candidate was the top ranked applicant; the committee ranked Bandy fourth. The second and third ranked candidates were 44 and 60 years old, respectively.
After sharing the committee’s decision, the Center’s director gave Bandy positive feedback that seemed to suggest she was qualified for the job. The director testified at deposition that she gave Bandy positive feedback out of “kindness.” While being professional and diplomatic is appropriate, employers should remember that statements, even if well-intentioned, can complicate the provided explanation for an employment decision. Here, another member of the committee told Bandy that the other individual was hired because he was “much younger and more energetic.” Such statements are direct evidence of age discrimination. The director told Bandy that age was not a factor in the decision and the other committee member’s comments were bothersome because they did not credit the hired candidate’s qualifications, which the director said drove the decision.
The trial court credited the evidence that age was used in the decision-making process and was direct evidence of discrimination. The court, however, found that Bandy did not present evidence showing that age was the but-for cause of the decision to not promote Bandy. The hired applicant’s education, experience, and interview performance were well-supported.
To prevail on an ADEA claim, a plaintiff must prove by a preponderance of the evidence that age was the but-for cause of the adverse employment action. If age is one of many reasons for an employer’s decision, the employee must then prove that the employer would not have made the employment decision it made in the absence of age discrimination. Despite the direct and circumstantial evidence of age discrimination, the court was persuaded that the committee hired the other candidate for “a number of legitimate reasons: his job experience, particularly in promotion and marketing; higher education in sports, communication, and executive leadership; sales background; enthusiasm; and preparation.”
The decision is a reminder of the importance of supporting hiring decisions with legitimate, non-discriminatory reasons. Protected characteristics should not motivate employment decisions. Employers ought to be prepared to show that traits, such as age, were not the reason a decision was made. If you are making a decision based on the comparative strengths of candidates’ skills, education, and experience, for example, then you should be able to articulate what those differences are and why they matter. In this case the City was able to do so and the Fourth Circuit affirmed summary judgment in Salem’s favor on appeal.