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At 41, they said I was “over qualified.” Age discrimination suit? If not Federal than State?

Los Angeles, CA |

In 10/12 a LA company (20–50 empls) had a job on Monster. In the interview the Mgr said the job would go to me or another person. Over the next few weeks, he traveled a lot and didn’t decide.
In 01/13 they reposted the same position. I called and told him I was avail. In this interview the Mgr said the job was not what I thought it was. I said I would take an entry-level job because I was out of the job market for 2 yrs and would give them my expertise for $13/hr. With each concern I gave her an assuring response and I reiterated I spent a lot of time on each job (avg 4 yrs) and gave a list of ref they could check. I have proof I was interested in the job sending several emails and because they gave me another opportunity to reapply did they believe I was qualified for this job?

Attorney Answers 4

Posted

"Overqualification" is actually a legitimate reason not to hire someone. From an employer's perspective, the concern is that an "overqualified" employee will jump ship as soon as they find a more suitable position. They'd rather only have to hire and train someone once, even if that means hiring someone with a less impressive resume.

While older employees are admittedly more likely to be "overqualified," these are distinct hiring considerations and it would be your burden to prove that AGE, and not simply your impressive resume, was the reason you were passed up. That is a tough sell on the facts you have described.

http://www.johnphillipslaw.com

This answer is a general interpretation of the law and is not fact specific to your case. Likewise it does not create an attorney-client relationship. You should seek an attorney for a review of your specific facts and documents.

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3 comments

Christine C McCall

Christine C McCall

Posted

Now THIS is a really good statement of an issue that usually defies cogent explanation. Great response!

Patrick John Phillips

Patrick John Phillips

Posted

Thank you for your kind words.

Neil Pedersen

Neil Pedersen

Posted

I agree Patrick, nice job.

Posted

You have the burden to prove that the real reason you weren't hired was your age. You might attempt to do that by showing that a younger person who is less qualified than you was hired for the job. Without more information, I don't think anyone can tell you if your case is viable. You may have as little as 180 days to file a charge with the EEOC or your state agency.

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Posted

I agree with the above answer. However, under FEHA, you have one year to file a complaint with the DFEH from the date of injury (likely when you were denied the position). It is difficult to prove a case like this because there are many other reasons they may not have wanted to hire you which are not illegal.

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Posted

Employees often get tangled up in issues of "qualified" and "best qualified" and they often suffer serious misunderstandings about "qualifications." These things are true, if counter-intuitive and widely misunderstood:

The employer determines what the "qualifications" for the position are. The "qualifications" are not required by law to be the usual easy calls such as prior experience or education. In fact, the qualifications do not need to be even job-related (except in public sector employment or where a union agreement provides otherwise). "More" of any qualification is not necessarily better than less and does not necessarily add up to "better" qualified. The employer is not required by law to identify or articulate the qualifications to candidates, and does not need to explain or justify the ultimate decision or choice (unless sued and even then only after the suit has survived initial counter-punches).

Here are some of the criteria that an employer can lawfully choose as the qualification or qualifications for an open position: attitude, versatility, lack of prior competing training, people skills, leadership potential, ability to work well with others, perceived ability to be satisfied with solitary assignments, likely to get bored and move on quickly, likely to stay without demanding upward movement, friend, relative, friend of relative, relative of friend, ability to carry tune. In fact, the employer can put all the names of the candidates in a hat and draw names to determine who is hired. The ones drawn can be the successful candidates -- or the names left undrawn in the hat can be the newly hired employees.

So long as the employer does not use a specifically prohibited classification, characteristic, or activity (no race, religion, jury duty or work comp claimant -based exclusions or selections), then the law will leave the employer alone about what criteria to use in hiring (or promoting) employees. The law presumes that the employer's financial interests will dictate the use of the "right" criteria of qualification. But employers can have their own views on that.

I worked in an office for awhile that hired with an eye on the company's softball team's prospects. At another place, no drinkers need apply. These were not the typical markers for "best qualified," but they were what mattered to the employer whose capital was funding the enterprise.

Bottom line: nothing in the factual summary you posted here raises any issues suggesting a sound claim for discrimination in hiring here -- age discrimination or any other kind. You did well in the competition, a factor refuting an inference of age-related discrimination, but you didn't win. I hope you will soon have a better result.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

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