Age discrimination can be a touchy subject
Published 01/13/06

When an employer hires a younger job candidate over an older, more experienced, job candidate, the employer may find itself facing a jury trial as to whether or not it unlawfully discriminated based upon age. This point was illustrated in a Michigan Federal Trial Court decision dated November 23, 2005; Plegue v. Clear Channel Broadcasting, Inc .

In that case, the Court ruled that a 46-year old radio producer who was rejected for a job on a "drive time" Detroit show in favor of a 24-year old candidate could proceed with his age discrimination case before a jury under Michigan 's age discrimination law. Most state age discrimination laws are very similar to the federal Age Discrimination and Employment Discrimination Act (ADEA) which protects individuals 40 years and older from age discrimination.

Plegue and the 24-year old candidate had interviews and the interviewer for Clear Channel Broadcasting stated that the major reasons for not hiring Plegue included his unfamiliarity with pop culture and concerns over his ability to relate to a younger audience.

The program director who interviewed Plegue also stated that he was unable to describe how he would create topics that would entertain and relate to the target 25 to 44 year old male demographic audience with desirable listeners being between the ages of 30 and 40. Furthermore, the program director stated that Plegue failed to show his ability to meld pop culture with sports and showed no familiarity with the hosts of the show.

In rebuttal Plegue stated that the interviewer asked him about his ability to relate to younger hosts and whether the age difference would be a problem. The interviewer contended that the age-related questions were only background queries to find a candidate who relates to the target audience.

The station argued that the comments by the interviewer were two of several posed during a 20-minute interview and therefore should be viewed as isolated, yet the Court found that Plegue had presented enough evidence to have his trial by jury in that the evidence produced showed that Plegue had significantly more experience than the selected 24-year old candidate.

When contrasted with Plegue's experience of over 20 years, the Court found that a jury could conclude that the station's reason for hiring a younger candidate - that he had substantially more producing experience than Plegue - was not the station's true reason.

Plegue did not need to establish that age was an exclusive reason for the employment decision but only that age was one of the reasons which made a difference.

Employers have to be careful when making employment decisions based upon customer preferences. Before an employer acts, they should speak with not only their human resource professionals but also employment counsel.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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