J.D. Candidate, 2017
Valparaiso University School of Law
Age discrimination involves the unfair treatment of an employee because of his or her age. By law, it is illegal for employers to discriminate on the basis of age in during decisions about hiring, firing, layoffs, benefits, promotions, and other conditions of employment. However, it can sometimes be very difficult to determine whether an individual was fired as a result of age discrimination. This was the case when principal Lionel Bordelon’s long-running contract was not renewed in 2011.
Bordelon began his career as principal of Chicago’s Kozminiski Community Academy in 1993. Although the Board of Education of the City of Chicago supervises schools in the Chicago school system, the Local School Council is responsible for hiring, evaluating, and renewing contracts for principals in the locality. The Board also employs a Chief Area Officer to supervise principals assigned to his or her certain area.
In the fall of 2009, the Board hired Judith Coates to serve as the Chief Area Officer for Area 15, becoming Bordelon’s supervisor. When she began her job, Coates was handed down a list of “principals to be disciplined” from her predecessor and Bordelon was on this list. In 2010, another principal in the area who was fired by the Board testified that she “just felt that the Board wanted someone younger and brighter.”
A few months later, Coates sent Bordelon a notice of pre-discipline hearing based on several allegations, including failing to respond to a parent issue, failing to schedule a meeting with a parent, and failing to respond to Coates’s email regarding these matters.
After evaluating Bordelon and meeting with the Council, Coates sent another letter to Bordelon in December 2010 reassigning him to home with full pay pending the outcome of an investigation of his alleged misconduct, including: (1) improperly replacing asbestos-containing tile at the school; (2) purchasing irregularities; and (3) tampering with school computers in a way that prevented access to school records by the Board. The general counsel for the Board also said that he was prepared to dismiss Bordelon depending on the results of the investigation.
In January 2011, the Council voted not to renew Bordelon’s employment contract based on several reasons, such as Bordelon’s failure to provide adequate principal reports, low evaluation scores, not satisfying the requirements for a safe and effective school, low test scores, and disciplinary problems.
On February 28, 2011, Bordelon submitted his official notice of retirement which became effective in June at the end of his non-renewed contract. Nine months later, he filed suit against the Board, claiming discrimination on the basis of age. He was 63 years old at the time.
The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against anyone who is 40 and older. 29 U.S.C. § 623. In order to prove discriminatory intent under the ADEA, the plaintiff can use either a direct method of proof or an indirect method of proof.
Because Bordelon chose to proceed under the direct method of proof, he had to provide admissible evidence of Coates’s discriminatory motivation based on age. The Seventh Circuit held that a key piece of Bordelon’s evidence was inadmissible due to the hearsay rule. Therefore, he did not meet his evidentiary burden and his motion for summary judgment was denied. The Court also reasoned that the Board had independent reasons for not renewing his contract, such as his disciplinary problems and low test scores at the school.
Even if Bordelon had presented enough evidence to prove a discriminatory intent based on age, there are still a number of difficulties associated with age discrimination claims. Although an employer can justify its policies or practices using a reasonable factor other than age, they may still have a disparate impact on older individuals. Take, for example, a school district that will not hire any with more than 10 years of experience. Although the school district can claim that hiring an employee with more than 10 years’ experience is costlier, this policy has a disparate impact on older workers.
At-will employment can also allow employers to get away with age discrimination. Essentially, at-will employment means that employers can terminate someone for any reason, such as age, or for no reason at all. Therefore, at-will employees may be discouraged from taking legal action when they feel their employer has discriminated against them due to their age.
Plaintiffs bringing an age discrimination claim may have higher obstacles to climb compared to their employers, even if they have a valid claim. Perhaps this means it’s time to reassess how our society perceives ageism in the workplace.