This seems like an odd problem. If the only reason to “succeed” the existing employee is age, then of course you are on thin ice. But if there is another reason, the question then becomes, “does the prospective employee have the same issue?”

Or do I misunderstand?

A problem with not having solid documentation (something in writting) leaves you without proof of the basis for your decisions. Otherwise its he said – she said.

Then add the inconsistency behind the decisions at your company and it screams bias – even if this is not the case.

Not treating everyone the same and then not having any documentation to back up decisions could be a potential issue.

Regardless of how the applicant scores on the caliper test, regardless of how nice and bubbly the applicant’s personality, regardless of thw salary range requested, this applicant is viewed as a very likely drain on the group benefits policy, not because of discrimination, but because historically, this is shown to be true.

Federal laws prohibt any discussion of these factors for the basis of hiring. But who can honestly say that the thoughts don’t occur?

Now, let’s flip the coin – the applicant knows that he or she is obese, knows that obesity and smoking are causing health problems, knows that the company most likely has benefits – there is no federal law that prohibits an applicant from seeking a position solely for the insurance benefits. If the applicant makes it through the 90 day probation period, they become eligible for the insurance benefits, FMLA benefits, etc. Is that not just as dishonest as an employer who would decline the applicant?

Not say what is right or wrong – just playing devil’s advocate here…

Also, please note that just because a less qualified and younger employee is hired, this may not necessarily mean it is due to age discrimination. Often more experienced workers have higher salary requirements. Perhaps they don’t need an expert in this particular position and based on position funding/requirements they can get by with a less experienced person who may have lower salary requirements.

Had he simply forwarded the resume to HR with a non-biased comment like, “I am forwarding a resume that I received and would appreciate it if you would review to see if he qualifies for any current openings.” If the applicant read this he would feel that it was headed in the right direction providing some hope. Sending it directly to the CEO was his way of trying to get someone to pay attention to him which I’m sure a lot of job seekers are feeling with so much competition in the market. Even if he didn’t qualify, at least he would have felt an effort was made in his behalf and he wouldn’t have been disgruntled and taken the company to court.

I’m astonished that a CEO would step over boundaries – a huge mistake that he would not tolerate if the error had been made by one of his reports. Sometimes upper management thinks they are exempt from the rules and this is what happens. Don’t do what HR wouldn’t do.

I would hope that if a less qualified and younger individual is selected that EVERYONE would see that as age discrimination.