No Age Discrimination If Successful Candidate Also Over Forty

Phillip Sheridan is a lieutenant with the Jackson Township, Ohio Division of Fire. At 57 years old, he is the oldest member of the Fire Department.

In 2008, Sheridan interviewed for a newly-created captain position. The Department passed over him in favor of a slightly younger, and arguably less qualified colleague. Sheridan sued the Township, claiming he was the victim of age discrimination.

The Ohio Court of Appeals dismissed the lawsuit. The Court found that to make a claim under the Age Discrimination in Employment Act (ADEA), an employee must show four things: (1) He is over the age of 40; (2) he sustained adverse employment action; (3) he was qualified for the position; and (4) the employee was replaced by, or the position given to, a person not belonging to the same protected class.

While the Court found that “Sheridan is 57 years old, which puts him within the protected class of persons over 40,” it determined that it “need not consider whether Sheridan suffered adverse employment action or was qualified for the position. The person who was given the job Sheridan applied for was 50 years old – also a member of the protected class. The ADEA does not require that employers hire the oldest candidate for the position. Thus, Sheridan has failed to prove the elements of an age discrimination claim.”

Sheridan v. Jackson Township, 2009 WL 714081 (Ohio App. 2009).

This article appears in the May 2009 issue