121.2 Hire

The Complainant, at age 59, was twice denied a job with the Respondent as a public works laborer. On both occasions, younger men in their early twenties were offered the job. There was testimony that the Public Works Committee wanted to hire a young man that they could train themselves and who would be there awhile. A comment was made that, given the Complainant’s age, “you kind of assume he is not going to be working real long anymore.” One of the decision-makers testified that he viewed one of the younger men selected for the position as a desirable candidate because he was a “down-to-earth kid, young.” This gives rise to an inference of unlawful age discrimination. Kalsto v. Village of Somerset (LIRC, 10/03/00).

Rejection of a job applicant because of a genuine belief that he is overqualified for the position at issue is not age discrimination. Although “over-qualification” might be correlated with advanced age, when an employer makes a decision on the basis of a criterion that is correlated with age, as opposed to age itself, the employer does not violate the laws against age discrimination. Schmidt v. Zimpro Envtl. Sys. (LIRC, 01/30/98).

The distribution of ages within the group of people who are moving into the job market and seeking entry-level positions is significantly skewed towards younger ages. Therefore, a pattern of hiring results that shows a tendency towards younger ages is not necessarily probative of discrimination based on age. Schmidt v. Zimpro Envtl. Sys. (LIRC, 01/30/98).

Stray remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue. In this case, the comment by a regional vice president of the Respondent that he couldn’t “get rid of [the Complainant] because [he was] too damn old” was not persuasive evidence that the Complainant's age was a factor in his failure to be hired. The remark was made at some unspecified time five years earlier, and the Complainant himself conceded that no other comments were made which implicated his age. Jacobs v. Glenmore Distilleries (LIRC, 07/27/95).

The Complainant failed to establish that there was probable cause to believe that he was discriminated against on the basis of age, even though it was undisputed that the Respondent failed to extend him an offer based upon his display of memory lapses during the interview process. It does not necessarily follow that the Respondent’s decision was motivated by the Complainant’s age. Harris v. Milwaukee County Mental Health Complex (LIRC, 05/13/94).

The Complainant failed to establish that he was discriminated against on the basis of age despite testimony from an individual within the Respondent's personnel department that the Complainant was rejected for a position because he was “part of the older management group.” There was no evidence that this group was “older” by age. In fact, it was clear from the context of the testimony that what was meant was “older” simply in terms of being previous in time to the current management group. Roeseler v. E.R. Wagner Mfg. Co. (LIRC, 05/13/94).

The ultimate burden of persuading the trier of fact that age was a determining factor in a hiring decision remains at all times with the Complainant. Kurtz v. Sch. Dist. of St. Croix Falls (LIRC, 06/10/93).

The Complainant failed to show that an employer’s reasons for failing to hire him were a pretext for age discrimination where (1) the employer notified the job applicant that the position available was for both a custodial and a maintenance person, and (2) the employer allowed all of the candidates an unrestricted opportunity to discuss their qualifications during the interview. An employer is not required to list all of its hiring criteria in a one-paragraph job announcement. Kurtz v. Sch. Dist. of St. Croix Falls (LIRC, 06/10/93).

The Complainant’s use of the employer’s data regarding the ages of people who had been hired for a custodial maintenance position during a seven-year period was insufficient to establish age discrimination since the statistical sample was too small to be of any significance and the Complainant failed to provide evidence of the number and distribution of older persons in the applicant pool. Kurtz v. Sch. Dist. of St. Croix Falls (LIRC, 06/10/93).

The use of the term “new blood” by a manager for the Respondent was not evidence of age bias where the manager explained the term by saying that he thought that the company needed new theories and new ideas. The term “new blood” has been recognized as being nothing more than an expression of a desire to change employees, whether they be younger or older. Wygant v. Form Servs. North (LIRC, 04/29/93).

Evidence that an employer has more young people than old people, without more, will not support a claim of age discrimination. The only kind of statistic which could potentially carry any significant weight in this area would compare, not overall numbers of younger versus older persons hired, but overall success rates of younger versus older applicants. Here, given the proportion of applicants who were in the protected category, the low number of hires in that category is not significant. What is significant is that older workers were at least as successful, if not more successful, than younger workers in getting employment with the Respondent. Wygant v. Form Servs. North (LIRC, 04/29/93).

It was not proper for an ALJ to dismiss a claim of age discrimination on the grounds essentially that the Complainant could not show he was qualified for a sales manager position for a liquor company where the Complainant asserted, among other things, that he had informed the employer that he could have sold his tavern business within 30 days (state law essentially precluded the Complainant’s owning a tavern if he were at the same time a liquor company sales manager), and that it appeared that the individual who had been hired was at least seventeen years younger than the Complainant. Jacobs v. Glenmore Distilleries Co. (LIRC, 11/25/92).

A Complainant who testified before the social security administration that he was permanently disabled and unable to perform the job duties of a printer/press operator on the date that the Complainant alleges the Respondent failed to hire him as a printer/press operator because of his age failed to prove a prima facie case of age discrimination. A prima facie case of age discrimination with respect to hire requires a Complainant to establish that he was qualified for the job which he alleges he was discriminatorily denied. Harrison v. Friends Professional Stationery, Inc. (LIRC, 09/18/92).

It was reasonable, and not evidence of age discrimination, for the Respondent to be concerned about the reliability of an applicant who, after an impressive start to his career, did not account in his job history for six of the twelve years prior to his application. Watson v. WPS (LIRC, 09/06/89).

Consideration of an applicant’s recent gaps in teaching experience is not evidence of age or sex discrimination, unless it is shown that such a consideration actually has a disparate impact on women or people over the age of 40. Chandler v. UW-La Crosse (Wis. Pers. Comm’n, 08/24/89).

The Respondent did not discriminate against the Complainant by failing to hire him as a sales manager because of age, since the Complainant was not interested in the sales manager position, said he would not have taken it if it had been offered to him, and failed to show that the Respondent’s stated reasons for not offering that position were pre-textual. Kumpf v. LIRC (Ct. App., Dist. IV, unpublished decision, 02/23/89).

Where the percentage of job applicants over age 40 matched the percentage of those who passed the initial screening, a 56-year-old applicant did not show that his failure to pass was related to his age even though the screening procedure did not follow merit selection standards. Schleicher v. LIRC (City of Janesville) (Rock Co. Cir. Ct., 07/14/83).

Where two candidates were otherwise equally qualified, a 53-year-old applicant did not prove that the Respondent's decision to hire an 18 year old was age discrimination, despite showing that the employer wanted someone who would remain for a long time, even if he was told that age would be the deciding factor. Protogere v. Appleton Mills (LIRC, 05/11/83).

A job applicant for a laborer position established a prima facie case of age discrimination in hire by showing that he had previously performed many of the job duties and that the two persons hired were not within the protected age group; but he was unable to rebut the employer’s statement that his non-hire was based on his previous inability to properly operate motor vehicles. Hogenson v. City of Prairie du Chien (LIRC, 12/10/82).

It was not age discrimination to fail to select a job applicant who was over 40 who passed an exam and was certified for a number of positions where there were legitimate non-discriminatory reasons for each hiring decision and each decision was made separately. Markham v. DHSS (Wis. Pers. Comm'n, 02/09/82).

A 50-year-old applicant for an accounting position established a prima facie case of age discrimination by showing that he applied and was qualified for the position, that a younger person was selected, and that the selecting official stated he was looking for a “long term investment” and had passed over another over age 40 applicant whom he could have selected on a competitive basis. Anderson v. Whitewater (LIRC, 12/03/80).

The employer prevailed in an age discrimination case where the job applicant for a pharmacist position did not have prior work experience in the preparation and use of intravenous drugs. Zimmerman v. Milwaukee County (LIRC, 01/16/80).

Subjective judgments about the relative merits of job applicants are a necessity but an employer's hire of four applicants under 40 years of age while bypassing a 55-year-old applicant was discrimination where the older applicant was equally or better qualified than those hired and the job interviewer could not adequately explain his need to write in code the age of the 55 year old. Bjork v. DHSS (LIRC, 09/22/77).

An employer’s refusal to hire a 47-year-old job applicant with excellent office skills was age discrimination where the employer had indicated to the job placement office a preference for someone under age 40 because of problems with employee benefits and training programs caused by hiring an older person. Pierson v. Indus. Elec. Wire (LIRC, 08/25/77).