Passed over for promotion: Was it unlawful age bias?

Selecting a job candidate who is much younger than others can raise the specter of age bias – but employers are not handcuffed from doing so.

They should, however, be prepared to show that the decision was based on a factor other than age.

An employer was able to do just that in a recent case from Virginia.

In January of 2019, Tammy Bandy was working at the Salem Civic Center as a box office cashier on a part-time basis. In that position, she assisted with ticket sales, answered the phone, and secured funds in the center’s vault.

That month, she applied for a newly available booking coordinator position. The job involved advertising the center to potential clients as an event space. The person in that position also managed reservations and rentals, and prepared contracts and invoices.

At the time she applied, Bandy was 52 years old.

The center’s HR department picked 11 candidates for referral to the center’s director, including Bandy.

The director then chose six of the 11 to interview, and Bandy made the cut again.

A three-person committee – consisting of the director, an events manager and the outgoing booking coordinator – conducted the interviews.

Interview does not go well

That is where things went south for Bandy. All three members of the hiring committee said that she did not adequately answer their questions, adding that she did not show enthusiasm for the job’s marketing and advertising duties.

Instead of Bandy, the committee chose a 25-year-old candidate for the job.

The successful candidate, Jefferson Lee, had a bachelor’s degree in sports business, with a minor in communications, and he had worked for his local parks and recreation department and for pro sports teams in event planning and promotion.

He was also in the process of completing an online master’s program in executive leadership while working full time as a high school assistant athletics director.

The committee said he responded to questions “thoroughly and enthusiastically.”

Qualifications, experience are key

Bandy’s qualifications and prior experience were vastly different. She is a high school graduate who previously worked as a billing clerk, secretary, and in various other clerical and retail positions.

The committee ranked her fourth of the six candidates for the job. The second-ranked candidate was 44 years old, and the third-ranked candidate was 60.

According to Bandy, the director told her she did not want to promote her because she already worked at the center. She said the director also gave her positive feedback.

In addition, she claimed that another committee member — the events manager — told her the committee selected Lee because he was “much younger and more energetic” than she was. The “younger and more energetic” Lee also happened to be a cousin of the events manager’s wife.

When Bandy reported that alleged comment to the director, the director reportedly told her that the events manager did not control the ultimate outcome of the interview process.

The director also told Bandy that age had nothing to do with the hiring decision.

Bandy resigned, and her last day of work was in early May of 2019.

She sues for age bias

About seven months later, she sued the City of Salem (which runs the center) for age discrimination under the federal Age Discrimination in Employment Act (ADEA) and constructive discharge.

A lower court ruled for the city. Even if the event manager’s alleged comments were treated as direct evidence of age bias, it said, Bandy did not do enough to show that she was denied the job based on her age. It pointed to Lee’s superior education, experience and interview performance. And it noted that Bandy was not even in the top three – and that one of the top three is older than she is.

On appeal, the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s ruling.

The appeals court explained that Bandy could not win just by showing that age was one of multiple factors that went into the decision to deny her the promotion she sought. Instead, it said, she needed to show that she would have gotten the job if age was completely removed from the equation.

In the law, this is known as the “but-for” causation standard. It essentially means that if age played a non-decisive role, there is no ADEA violation.

The appeals court said the lower court correctly assumed that the entire interview committee – rather than the director herself – was the decisionmaker in the hiring process.

That was a positive for Bandy because it meant that the committee member who made the alleged ageist comments was central to the decision.

Not enough evidence

But it was a small victory for Bandy, the appeals court explained, because even with the benefit of that assumption no reasonable jury could find that she would have been promoted but for her age.

Many of her assertions “amount[ed] to little more than speculation,” the appeals court said. She was not even among the top three candidates, it pointed out.

Most importantly, the city provided a number of legitimate reasons for its decision, including Lee’s superior experience, enthusiasm and preparation.

The lower court’s decision was affirmed.

Employers need not – and should not – shy away from hiring a younger job candidate in favor of one to whom the ADEA’s protections apply (age 40 or older). But they do need to be prepared to present competent evidence showing that age did not drive the challenged employment decision. Most often, this evidence comes in the form of comparative education, skills and relevant experience – and may also include job interview performance.

Bandy v. City of Salem, Virginia, No. 21-1565 (4th Cir. 2/13/23).