9. Susan, who is 47 years old, applied for a promotion but was denied. Susan then learned the successful applicant was 45. Susan filed a complaint with the human resources department that the company is guilty of age discrimination. Which defense should the employer assert?
Answer: D
Susan has not established a claim of age discrimination since the successful applicant was not substantially younger than she is.
The employer should assert that Susan has not established a claim of age discrimination because the age difference between her and the successful applicant is not significant enough to meet the legal threshold for age discrimination claims.
A) Susan is not covered by the Age Discrimination in Employment Act until she is 50 years old.
This option is incorrect because the Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older. Since Susan is 47, she is clearly covered under the ADEA, making this defense invalid.
B) Age is not a factor that must be considered for internal promotions.
This option is misleading as age can be a factor in determining whether discrimination has occurred. While an employer is not required to consider age in promotions, failing to do so does not negate the possibility of discrimination claims based on age, rendering this defense inadequate.
C) Age discrimination did not occur since she applied for the position and was considered for the promotion.
While it is true that Susan applied and was considered, this alone does not negate the possibility of age discrimination. The core issue is whether the age difference between her and the successful candidate constitutes discrimination, so this defense does not effectively address the complaint.
D) Susan has not established a claim of age discrimination since the successful applicant was not substantially younger than she is.
This is the correct defense for the employer to assert. The legal standard for age discrimination often considers whether the successful applicant is significantly younger than the complainant, and in this case, a two-year difference does not meet that threshold, thus undermining Susan's claim.
Conclusion
The employer's best defense lies in the assertion that Susan has not established a viable claim of age discrimination, as the age difference with the successful applicant is minimal. Options A, B, and C fail to address the specifics of the age discrimination claim adequately, while option D directly tackles the core issue, making it the most compelling defense.