Age discrimination claims may involve job postings

Discrimination claims arise from all aspects of the employment relationship, not just termination. A recent case from the Fifth Circuit Court of Appeals, Moss v. BMC Software, Inc., clarified what standards must be used to avoid discriminating on the basis of age during the hiring and promotion process. Moss v. BMC Software, Inc., 610 F.3d 917 (5th Cir. 2010).

Moss was a 68-year-old very experienced attorney who applied for a staff legal counsel position within BMC Software. He was not selected and BMC hired a lawyer with 33 years less legal experience to fill the position. Moss sued, claiming (1) he was denied the position because of his age; and (2) his extensive experience with the type of IT work BMC does plus his excellent credentials made him the most qualified candidate.

In analyzing the case, the Fifth Circuit focused on the applicable legal standard which requires the applicant not chosen to prove he was “clearly better qualified” than the one who got the job. In determining whether a candidate is “clearly better qualified” than the employee selected, courts focus on the qualifications that are “recent and specialized in relation to the job at issue,” rather than overall years of experience. In addition, the qualifications considered must be those that the employer articulated in its job posting. “An employer’s reliance on a previously unmentioned job requirement to justify a challenged hiring decision” creates the appearance of discrimination and requires a jury to decide whether the “previously unmentioned job requirement” was real and just overlooked by the employer or, alternatively, was brought forth after the fact to justify not hiring the older person.

Ultimately, the Fifth Circuit concluded that Moss was not “clearly better qualified” for the specific position at issue than the much younger candidate who got the job. Although the court recognized that “Moss’ accomplishments and qualifications are unquestionably impressive,” he was not “clearly better qualified” with regard to the specific job requirements at issue. Because of this, Moss failed to prove that he would have gotten the job but for his age. In reaching this decision, the court reiterated its reluctance to second guess business decisions:

The [Age Discrimination in Employment Act] was not intended to be a vehicle for judicial second-guessing of employment decisions nor was it intended to transform the courts into personnel managers. The ADEA cannot protect older employees from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated.

The decision in Moss v. BMC Software makes clear that employers should be very careful when preparing job postings and should be sure that the written job requirements/criteria provide a complete description of the needed skill set. Employers should also pay close attention to the decision-making process as to candidates who provide information indicating that they meet all of the posted requirements. In each such case, employers must be prepared to clearly articulate the non-discriminatory basis of the decision not to hire that candidate.