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72 | Recruitment and Selection Law for Local Government Employers
As the Court further noted, in a case relying on circumstantial evidence of discrimination, the evidence must be sufficient to create an inference that the discrimination was based on age. Where the person chosen instead of the plaintiff is only marginally younger than the plaintiff, that inference is not easily made. Neither the choice of a 65-year-old over a 68-year-old, for example, nor the choice of a 37-year-old over a 40-year-old in and of itself suggests that age was the basis of the decision.105
2.2.1.1 Minimum Hiring Ages under the ADEA
North Carolina local government employers may want to set minimum age requirements for certain positions for which they believe maturity is necessary. Some positions, such as those of police officer or sheriff’s deputy, have minimum ages set by state agencies.106 Where a state agency or licensing board has not set a minimum age, local governments are free to do so themselves. Where the minimum age is younger than 40, the ADEA is not implicated. The author is not aware of any North Carolina local government positions that have a minimum age over 40.
2.2.1.2 Maximum Hiring Ages and the BFOQ Defense under the ADEA
Local government employers may also want maximum age requirements for certain positions for which they believe that youthfulness is necessary. Setting a maximum age requirement that is under age 40 would appear to constitute a violation of the ADEA on its face. But like Title VII, the ADEA recognizes the bona fide occupational qualification (BFOQ) defense.107 In the hiring context, this means that it will not be a violation of the ADEA to reject an applicant because of his or her age when the employer can show
105. See O’Connor, 517 U.S. at 312–13. See also Gibbard v. Potter, 2009 WL 159418 at *6–*7 (W.D.N.C. 2009) (replacement of 41-year-old plaintiff with men in their late thirties did not give rise to inference of age discrimination).
106. The North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs’ Education and Training Standards Commission set the minimum age for employment as police officers and sheriff’s deputies, respectively, at 20 years of age. See 12 N.C. Admin. Code (hereinafter N.C.A.C.) 09B .0101(2) and 12 N.C.A.C. 10B .0301(a)(2), respectively. Neither commission has established a maximum age for law enforcement officers.
107. See 29 U.S.C. § 623(f)(1). The requirement that the bona fide occupational qualification be reasonably necessary to the normal operation of the particular business has been uniformly interpreted to refer to the particular job from which the applicant is being excluded. See Trans World Airlines, Inc., v. Thurston, 469 U.S. 111, 122 (1985).
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| Title | Recruitment and selection law for local government employers - Page 88 |
| Full Text | 72 | Recruitment and Selection Law for Local Government Employers As the Court further noted, in a case relying on circumstantial evidence of discrimination, the evidence must be sufficient to create an inference that the discrimination was based on age. Where the person chosen instead of the plaintiff is only marginally younger than the plaintiff, that inference is not easily made. Neither the choice of a 65-year-old over a 68-year-old, for example, nor the choice of a 37-year-old over a 40-year-old in and of itself suggests that age was the basis of the decision.105 2.2.1.1 Minimum Hiring Ages under the ADEA North Carolina local government employers may want to set minimum age requirements for certain positions for which they believe maturity is necessary. Some positions, such as those of police officer or sheriff’s deputy, have minimum ages set by state agencies.106 Where a state agency or licensing board has not set a minimum age, local governments are free to do so themselves. Where the minimum age is younger than 40, the ADEA is not implicated. The author is not aware of any North Carolina local government positions that have a minimum age over 40. 2.2.1.2 Maximum Hiring Ages and the BFOQ Defense under the ADEA Local government employers may also want maximum age requirements for certain positions for which they believe that youthfulness is necessary. Setting a maximum age requirement that is under age 40 would appear to constitute a violation of the ADEA on its face. But like Title VII, the ADEA recognizes the bona fide occupational qualification (BFOQ) defense.107 In the hiring context, this means that it will not be a violation of the ADEA to reject an applicant because of his or her age when the employer can show 105. See O’Connor, 517 U.S. at 312–13. See also Gibbard v. Potter, 2009 WL 159418 at *6–*7 (W.D.N.C. 2009) (replacement of 41-year-old plaintiff with men in their late thirties did not give rise to inference of age discrimination). 106. The North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs’ Education and Training Standards Commission set the minimum age for employment as police officers and sheriff’s deputies, respectively, at 20 years of age. See 12 N.C. Admin. Code (hereinafter N.C.A.C.) 09B .0101(2) and 12 N.C.A.C. 10B .0301(a)(2), respectively. Neither commission has established a maximum age for law enforcement officers. 107. See 29 U.S.C. § 623(f)(1). The requirement that the bona fide occupational qualification be reasonably necessary to the normal operation of the particular business has been uniformly interpreted to refer to the particular job from which the applicant is being excluded. See Trans World Airlines, Inc., v. Thurston, 469 U.S. 111, 122 (1985). |
