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Riverside County Employment Lawyers > Blog > Employment Lawyer For Employees > Can An Employer Refuse To Hire Or Promote An Employee In Favor Of “Someone Younger?”

Can An Employer Refuse To Hire Or Promote An Employee In Favor Of “Someone Younger?”


Age discrimination is against the law. Specifically, federal and California state laws forbid an employer from firing or refusing to hire someone based on age if the employee or job applicant is at least 40 years old. For example, an employer cannot reject a job candidate simply because they “want someone younger” to fill the position.

Calif. Appeals Court Revives Discrimination Lawsuit After Ruling Stray Remark Admissible

A recent published decision from the California Second District Court of Appeals, Jorgensen v. Loyola Marymount University, demonstrates that even a single remark along these lines can trigger an employer’s liability for age discrimination. The plaintiff in this case worked for the defendant for more than 25 years. According to the plaintiff, everything was going well in her job until a new boss was hired to run her department. The plaintiff alleged this new boss “discriminated against older female employees” like her.

The plaintiff said the boss subsequently appointed a 30-year-old female employee to be his assistant manager. The plaintiff was then required to report to this assistant and, in her words, was marginalized at work to the point where she “was left to watch cat videos.” When the employer failed to take the plaintiff’s complaints of age discrimination seriously, she resigned and sued.

The employer’s defense was that the plaintiff was a “problem employee” who was insubordinate to the new department management. Furthermore, the employer insisted the promotion of a younger woman over the plaintiff was due to the former’s “competence” and not based on any discriminatory intent. The employer moved for summary judgment, arguing the plaintiff failed to provide any evidence to support her discrimination claims.

The trial court sided with the employer and granted its motion. On appeal, however, the Second District reversed, holding the trial judge erred in excluding a key piece of evidence offered by the plaintiff–namely, a statement made by another former employee who said the assistant manager rejected a job applicant because she “wanted someone younger” for the position.

The trial court rejected this statement as irrelevant and inadmissible hearsay. The Second District disagreed. The statement was relevant because based on the evidence offered by the plaintiff, a jury could “infer” that the assistant manager had influence over the manager–the person who made the final hiring decisions–and thus her discriminatory intent in recommending job candidates was relevant to the plaintiff’s overall discrimination claim. And while the assistant manager’s statement she “wanted someone younger” was hearsay, it was still admissible under an exception for evidence regarding a person’s “state of mind.”

This judicial reasoning could mean that an employee can sustain an age discrimination case if the employer’s managerial representative only made one ageist comment.

Speak with a California Employment Discrimination Attorney Today

Age discrimination is often tricky to prove. Even the case discussed above offers a rare instance of an employer representative allegedly making an open statement of discriminatory intent against older workers. Still, there are other ways to prove age discrimination. An experienced Riverside County employment lawyer representing employees can help you in building your own case. Contact the Law Office of Karen J. Sloat, APC, today to talk with a member of our employment law team.



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