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"Overqualified" is Not Necessarily A Proxy for Age Discrimination

July 1, 1995

The U.S. Supreme Court has made clear that when an employer makes a decision on the basis of a criterion that is often correlated with age - such as high salary or length of service - as opposed to age itself, the employer does not violate the Age Discrimination in Employment Act (the "ADEA"). Hazen Paper Co. v. Biggins, 113 S.Ct. 1701 (1993). Nevertheless, some courts, including federal courts in New York, have expressed concern that the practice of rejecting job applicants as "overqualified" can function as a proxy for age discrimination if "overqualification" is not defined in terms of objective criteria. The U.S. Court of Appeals for the Ninth Circuit in San Francisco recently addressed this issue, however, and found that an employer lawfully rejected an applicant because he "had too much training and experience." EEOC v. Insurance Co. of North America, 49 F.3d 1418 (9th Cir. 1995).

In this case, the employer placed a newspaper advertisement for the position of loss control representative, which stated that the ideal candidate would have two years of relevant experience. An individual who had over 30 years of relevant experience applied for the job, but was rejected as "overqualified." The employer explained that, because of his extensive experience, the applicant "probably would have delved too deeply into accounts," thereby consuming more of the insureds' time than was necessary given the uncomplicated nature of the accounts.

The district court granted summary judgment in favor of the employer, finding that its reason for not hiring the applicant was not pretextual, i.e., that "overqualified" in this case did not serve as a proxy for age discrimination. On appeal, the Ninth Circuit affirmed, finding that "ICNS's rejection of [the applicant] due to his overqualification for the position at issue was based on at least one defined concern" - that he "would delve too deeply into the accounts to which he would be assigned." Because that "defined concern" was "objective and non-age-related," and because the EEOC "did not produce evidence that this neutral reason was pretextual," the Ninth Circuit affirmed the trial court's dismissal of the action.

In contrast, the U.S. Court of Appeals for the Second Circuit, in New York, has refused to dismiss age discrimination actions where the employer refused to offer the plaintiff an available position based upon concerns about "overqualification." In Binder v. Long Island Lighting Co., 933 F.2d 187 (2d Cir. 1991), for example, the employer justified its failure to offer the plaintiff, whose job was eliminated, available lower level positions in lieu of termination on the ground that he would have been "underemployed" in those jobs, and "that placing him in such a position would have led to his frustration and low morale." In reversing the trial court's granting of summary judgment, the Court of Appeals stated that although "[t]he ADEA does not forbid employers from adopting policies against `underemploying' persons in certain positions as long as those policies are adopted in good faith and are applied evenhandedly," such policies "may also serve as a mask for age discrimination, and the issues of good faith and evenhanded application cannot be resolved on a motion for summary judgment on the present record." The Second Circuit recently reiterated these concerns in a later phase of the Binder case. After the jury found for the plaintiff, the trial judge overturned the verdict, but the Court of Appeals reversed, finding that the jury rationally could find that the employer's claimed justification - its policy against underemployment - was a pretext for age discrimination. Binder v. Long Island Lighting Co., 1995 U.S. App. LEXIS 14330 (June 8, 1995).

Clearly, an employer legitimately may determine that an applicant's skills or experience so far exceed those required for the position that they disqualify the applicant for consideration. But the foregoing decisions illustrate that, to avoid unnecessary charges of age discrimination, an employer rejecting an applicant in those circumstances should not rely upon generalized claims of "overqualification," but should identify and enunciate the specific ways in which the applicant's extensive experience or skills may interfere with proper job performance.