Qualifying the Term ‘Qualified’ Worker

May 1, 2008

(article originally published in the New Hampshire Business Review, May 2008)

 Most employers know that the Age Discrimination in Employment Act (“ADEA”) prohibits an employer from denying a position to an employee or job applicant who is forty-years old and above on the basis of age, so long as he or she is qualified for the position.  But what does it mean to be qualified for a position?  And what can an employer do to ensure that it does not find itself faced with an ADEA claim when the employer deems a candidate “unqualified?”

Employers should note the four requirements a plaintiff must establish in order to bring a case of age discrimination: (1) the employee (or job applicant) must be at least forty years old; (2) he or she must be qualified for the position; (3) he or she must not be selected for the position; and (4) the employer does not treat age as a neutral factor in the decision-making process.  In December 2007, the United States District Court for the District of New Hampshire addressed the issue of what makes a candidate “qualified” for a position in Cossette v. Johanns. 

Cossette was a 60-year-old male job applicant for the position of Resource Assistant at the White Mountain National Forest, which is run by the United States Department of Agriculture (“USDA”).  The USDA placed a job announcement that was very detailed in describing the position’s education and skill requirements.  These requirements included one year of graduate level education or a year of specialized experience as well as three selective placement factors: communication skills in relation to permit applicants and forest personnel, computer skills regarding forest permits and permit applications and the ability to analyze data and compile reports. 

Cossette was clearly a highly intelligent and skilled applicant in many respects.  Although he was only a high school graduate with one year of college education, he had worked his way up to become the vice-president of a bank.  In this position, he developed sharp communication skills due his constant interaction with customers, conducted complex data analyses and supervised many other employees.  However, his application for this position was denied by the USDA on the basis that he did not meet the requirements stated in the job announcement. 

Cossette brought suit and contended that the skill set he had developed as the vice-president of a bank would translate into the skill set the USDA sought for the position of Resource Assistant.  He argued that because he had strong communication skills, had experience using computer programs for data compilation and analysis and had proven supervisory skills, he would be an excellent candidate for the position.  While the USDA did not contest that he was skilled with many assets, it argued that his skills would not be a good fit for this particular position and that he would be better suited elsewhere.  The Court agreed.

The Court found that Cossette had not made a showing of how his experience in the banking industry would lead to his success in the position of Resources Assistant, with its very specific job requirements.  The position needed to be filled by a person with experience dealing with specific forestry and permitting issues that were not common knowledge in other industries.  While Cossette may have been an intelligent man with an impressive background, it did not follow that he was qualified for the position he applied for. 

The lessons from Cossette address the questions asked at the beginning of this article.  First, employers should be aware that whether a candidate is “qualified” is related to the particular skills required for the job advertised.  Employers should not feel constrained to hire or advance a applicant or employee if they are of a certain age but not a match for the particular job at hand.  While an employee or applicant may be educated, intelligent and skilled, it does not translate that he or she will be qualified for every position available.  As the Court in Cossette said, “`b`eing a fast learner, however, is not the same thing as having the requisite experience.”  Employers should feel free to find a candidate of any age that has the specific  knowledge required to succeed at the position. 

Second, employers should be very detailed in describing the education and skill requirements they put in job advertisements and should ensure that the requirements relate to the position being advertised.  Employers can use this to protect themselves from a later ADEA attack.  When an employer clearly defines the parameters of the experience required, it defines for itself who will be “qualified” for the position.  These definitions will be used by a reviewing court at which point an employer must readily be able to point out why the experience is relevant and where the applicant fell short. 

Simple and inexpensive preventative measures such as clearly defining job requirements can go a long way in preventing expensive and time consuming litigation in the future.  These are steps that any employer, large or small, can take to protect its business. 


Katie Kiernan  is an attorney in the  Litigation Department at the law firm of McLane, Graf, Raulerson & Middleton, Professional Association.   Katie can be reached at 603-628-1490 or at katie.kiernan@mclane.com. The McLane Law Firm is the largest full-service law firm in the state of New Hampshire, with offices in Concord, Manchester and Portsmouth.