Age Bias Ruling Seen as Bane, Boon to School District Suit : Litigation: Newport-Mesa Unified says Midwest case will bolster defense against charge it discriminates against older job seekers. EEOC lawyer disagrees.


Attorneys defending the Newport-Mesa Unified School District in a lawsuit alleging it discriminates against job applicants over 40 said Monday that a recent ruling by a Midwestern judge bolsters their case.

But Robin Bernhardt, the attorney for the U.S. Equal Employment Opportunity Commission, which filed the class-action suit, said the ruling should have no impact “since it was not decided in this circuit. It’s not binding.”

The lawsuit accuses the school district and the teachers union, the Newport-Mesa Federation of Teachers, of regularly discriminating against teachers who are older than 40.

The suit charges that the district illegally turned down a 42-year-old job applicant with 16 years’ teaching experience because she would have commanded a higher salary than candidates with fewer years of teaching.


Attorney Dana McCune, representing the district, denied that the district discriminated against the woman and told local U.S. District Judge Gary Taylor during a court hearing Monday that there were other compelling reasons for not hiring her. School officials have said that the person they hired instead for the kindergarten teaching job had better Spanish-speaking abilities.

In a similar case two months ago, McCune said, the 7th Circuit Court of Appeals ruled in favor of a school district in the Midwest. McCune said he was hopeful that Taylor would take that ruling into account, as well as a U.S. Supreme Court ruling in 1993 that touched on the issue.

“Unfortunately, the EEOC, which lost on this principle . . . wants yet another bite of the proverbial apple,” he said.

The suit, filed Aug. 16, also challenges the district’s practice of putting a cap on the number of years a teacher can be credited when applying for a job and then hiring teachers with less experience to save on costs, Bernhardt said. The practice results in an “adverse impact upon persons 40 years of age and older,” the suit claims.


McCune said the school district is bound to its hiring practices by its agreement with the union.

“The school district, like any private enterprise, has a budget and may be faced with an issue of whether to hire two essentially similarly qualified teachers, one at $45,000 and one at $20,000,” McCune said. “We are mandated as to what we pay these individuals.”

Both attorneys agreed Monday to ask Taylor to make a judgment on the case, without a jury trial, this spring.