“No Backsies?” — Not Rehiring a Recently Retired Employee Can Lead to Liability
Based on a set of somewhat unusual facts, a federal district court in Ohio ruled that an employer that refused to rehire a recently retired individual to his former position will need to argue at a jury trial that its decision was not based on age. In Rose v. City of Toledo, a 62-year-old employee retired from the City Water Department, and shortly thereafter, applied for two positions within the Water Department (one of which was to be rehired into his former position). The employer interviewed eight candidates (including the plaintiff). Despite being the third highest scorer on the exam, plaintiff was not hired for any position. Rather, his former position was filled by the fourth-highest scorer, and the remaining positions were filled by the lowest ranked applicants (all of whom were more than 10 years younger). At deposition, the employer’s administrator testified that despite his experience doing the identical job, the plaintiff was not selected because he was not viewed as a “long-term” candidate due to his recent retirement. This statement, combined with the large difference in ages amongst the candidates, created an inference of discrimination. Thus, the Court denied the employer’s motion for summary judgment.
This ruling is a reminder that business decisions are subject to scrutiny even though they may seem sensible to the one making the decision. Perhaps a better course of action is to adopt a rule barring rehire within a specified period of time after resignation, discharge, or retirement.