Last week, a divided Franklin
County Court of Appeals reversed a $507K
verdict issued by the Court of Claims last year, finding that ODNR
unlawfully discriminated on the basis of age when it refused to re-hire a
retired employee and best qualified applicant based on an informal policy generally
precluding the re-hire of retired employees because of the public’s skepticism with
“double dipping.” Warden
v. Ohio Department of Natural Resources, No.
2014-Ohio-35. The Court
of Claims Judge had dismissed the disparate treatment claim, but determined
that the policy had a disparate impact against individuals over the age of 40
because it only applied to retired employees, who necessarily would be in the
protected age group. The Court of
Appeals disregarded similar cases decided on summary judgment because while
those cases recognized the legal theory being advocated by the plaintiff, they
did not mandate a verdict in the plaintiff’s favor on the disparate treatment
claim when the trial court resolved the facts against the plaintiff. The Court also noted that the plaintiff had
failed to plead or prove a disparate impact theory in his complaint, during
summary judgment pleadings or at trial. “The
fact that ODNR's policy theoretically could only impact members of a protected
class is not sufficient to prove a disparate impact claim.” In this case, the evidence showed only that
the policy affected two previously-retired applicants and the employer hired
one of them. “An
adverse effect on a single employee, or even a few employees, is not sufficient
to establish disparate impact."
The Court agreed that the anti-retiree
policy was not motivated by unlawful discriminatory intent because it was,
instead, “motivated
by a desire to prevent double-dipping as opposed to inaccurate and stigmatizing
stereotypes about older workers.”
"When the employer's
decision is wholly motivated by factors other than age, the problem of
inaccurate and stigmatizing stereotypes disappears." (Emphasis sic.) Id.
at 611. Therefore, there is no disparate treatment when the factor
motivating the employer is some feature other than the employee's age.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
