“Building for the Future” Is Not Necessarily Age Discrimination


Noting that “[c]onduct that, standing alone, may raise questions about discrimination may turn out to be innocuous when viewed in context,” the U.S. Court of Appeals for the Seventh Circuit rejected a doctor’s failure to hire claim under the Age Discrimination in Employment Act, despite an interviewer’s note that the doctor was “at end of career.”

In Marnocha v. St. Vincent Hospital and Health Care Center, Inc., the doctor challenged the selection of a younger applicant for the open position. The employer was able to demonstrate, through its record, that the younger applicant outperformed the doctor in the interview process, with a plan for transition, proactive research, and energy, in contrast to the doctor’s dismissive attitude towards her need for training and the existence of medical advances over the last 15 years. And while one interviewer made a note that the doctor was “at end of career,” he explained that he “want[ed] to build for 20, 30 years in the future, not just for the next five years.” The Seventh Circuit observed that, “We have previously explained that the description of a plaintiff as a “later career person” is “not an inevitable euphemism for old age.” The Seventh Circuit further noted that there was nothing to indicate that the interviewer steered the rest of the panel away from the applicant, as each member independently reached the same hiring decision. And further, seeking an employee with a “high energy level,” without more, does not indicate an inappropriate focus on age.

This case is interesting because it supports the ability of employers to plan for the future, as long as they are doing so without expressly relying on age as a factor in their decision-making process. It also supports the use of an applicant’s energy level as a legitimate factor. And it reinforces the wisdom of building a strong record as to the legitimate reasons for the selection, as well as a warning to avoid writing down statements that could be misinterpreted as being discriminatory.