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Agency's Double-Dipping Prohibition Disparately Impacts Older Workers

The Ohio Court of Claims recently found policies prohibiting the hiring of candidates who were also receiving retirement benefits constituted Age Discrimination due to their disparate impact.  In Warden v. Ohio Dept. of Natural Resources, 2012-Ohio-3854 (Ohio Court of Claims, Apr. 4, 2012), the Court found for the applicant as the policy could only impact employees over 40 years of age.

Warden was formerly employed as a civil engineer with Ohio Department of Natural Resources (ODNR).  He retired in 2006 at the age of 51.  In 2010, his former manager contacted him to inquire if he would be interested in returning to a full-time position.  Warden submitted his application.

At the time he applied, the agency's director believed that a former employee should not be rehired and therefore double-dipping by receiving a pension and state salary at the same time.  Notwithstanding, the agency interviewed Warden and he was recommended for rehire by the interview panel.  The agency director refused to rehire Warden because he was a retired employee.  Subsequently, the agency hired a lesser-qualified individual under 40 who was not recommended for the position. 

Warden then made a public records request and learned that the real reason he was not hired was because he was a retiree.  He filed suit in the Ohio Court of Claims claiming that ODNR's decision not to rehire him violated R.C. 4112.14 and 4112.99 because of his age.

Following a liability trial, Judge Travis held that ODNR discriminated against Warden on the basis of his age based on a no rehire policy that had a disparate impact on all individuals over 40 who had retired from the agency. The policy prohibited the rehire of former retired employees regardless of their qualifications for the position. Since Warden was a victim of this unwritten policy, the Court observed that Warden's status as a retired employee placed him in a protected class that prohibited employers from discriminating against an individual over 40 years of age.

On August 1, 2012, the court conducted a trial on the issue of damages. The parties are awaiting a decision on this issue.

By: Merl H. Wayman

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