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“We Never Consider a Job Applicant’s Age”: Is an Employer Telling the Truth–or Is It Just a Pretext for Discrimination?


Proving employment discrimination is often easier said than done. Even if you believe you were denied a job or other employment opportunity, such as a promotion, because of your age, sex, race, or some other legally protected status, the employer can turn around and argue it had a legitimate, nondiscriminatory reason for the actions it took. The burden then shifts to you to show that the reasons offered by the employer were a pretext–i.e., a sham designed to mask an act of illegal discrimination.

Appeals Court Rejects Age Discrimination Lawsuit Against L.A. Community College District

A recent unpublished decision from the California Second District Court of Appeals in Los Angeles, Cadena v. LA Community College District, illustrates how this burden-shifting rule works. The plaintiff in this case applied for a position as a director with the Los Angeles community college system. There were actually two director positions available. At the time of his application, the plaintiff was in his early 60s.

The Community College District ultimately hired two younger people to fill the director positions. The plaintiff, who did not even receive an interview, then filed an administrative complaint with the California Department of Fair Employment and Housing, alleging he was the victim of age-based discrimination, which if true would violate state and federal laws. This ultimately led to the plaintiff’s lawsuit in California state court.

The District argued it had a legitimate, nondiscriminatory reason for declining to interview the plaintiff and hiring younger applicants. Specifically, the District said the plaintiff “did not have the specialized experience required for the positions.” The District further insisted that the individuals who decided which applicants to interview did not have access to personal identifying information about the plaintiff, including his age.

The trial court, and later the Second District, accepted the District’s reason and held the plaintiff failed to present any evidence to show this was merely a “pretext.” The plaintiff’s main argument here was that the District lied about the measures it took to conceal the identity of applicants’ age and other information (e.g., race and gender) from the people making the hiring decisions. The plaintiff insisted the relevant decision makers could in fact “deduce the candidates’ approximate ages from the dates of their college education and their work experience identified in their applications.”

While the appeals court agreed that the District “overstated” its case on this point, at best this only showed it lied about the “process” used to hire the directors and not the “reason” for its decision. That is to say, even if the decision maker had “deduced” that the plaintiff was over the age of 40–the minimum age at which the protection of age discrimination law kicks in–this did not prove the plaintiff’s age was the reason he did not receive an interview. Accordingly, the Second District upheld the trial court’s decision to dismiss the plaintiff’s age discrimination lawsuit.

Can You Prove You Were the Victim of Illegal Employment Discrimination?

Obviously, most employers that do engage in blatant discrimination are unlikely to admit it. So it is not unusual for employers to come up with some excuse to justify their illegal decision. That said, cases like the one above illustrate how it is not enough for you to simply claim that discrimination must have been the reason–you still need to provide credible evidence to a judge. If you have additional questions about this or any related subject, consult with an experienced California employment law attorney right away.


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* Cathleen Scott is licensed to practice in Florida only.

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