Age Bias Suit Against District Rejected : Court: Judge tentatively rules employers such as Newport-Mesa Unified can consider applicants on a case-by-case basis, weighing what ‘it can afford to pay new hires.’

A federal judge Monday tentatively rejected an age discrimination lawsuit filed against the Newport-Mesa Unified School District by the U.S. Equal Employment Opportunity Commission.

In a test case for California, the EEOC had accused the school district last August of regularly discriminating against teachers who are older than 40. The commission cited the case of a 42-year-old woman with 16 years’ experience who was turned down in favor of a younger woman hired for about $12,000 less.

The suit is the first to challenge the widespread practice in the state’s public schools of hiring teachers based, in part, on applicants’ potential salaries.

In a tentative ruling, U.S. District Judge Gary L. Taylor wrote that the school district had not discriminated against Marilyn Weinman, who applied for a kindergarten teaching position in 1991.

“An employer surely may consider applicants on a case-by-case basis with limits in mind as to how much it can afford to pay new hires,” Taylor wrote.

Taylor told attorneys in court that while it would be improper for an employer to adopt a blanket policy against hiring older people with more experience because they generally cost more, “the court . . . does not rule out the right, even the obligation, of . . . a public employer with limited resources to consider workers on a case-by-case basis.”

The district argued that it is bound to its hiring practice of paying more for more experienced teachers by its agreement with the Newport-Mesa Federation of Teachers, which was also named as a defendant in the suit.

The district also argued that it has a right to choose to hire less expensive personnel to control costs, and that other factors were involved in the decision, such as the younger woman’s fluency in Spanish.

District officials were pleased by Monday’s court ruling. “I’m thrilled that the judge ruled in our favor, primarily because it was a test case with widespread ramifications,” school board member Martha Fluor said. “Newport-Mesa always attempts to hire the most qualified individuals, but clearly if two people are equally qualified and one is less expensive, we will most likely go with the less expensive” candidate.

Because of the terms of the labor agreement, Weinman could not have chosen to work for less money even if she had wanted to. A stipulation in the contract prohibits an employee from being paid less than his or her experience dictates according to the union’s and district’s agreed-upon pay scale, EEOC attorney Robin Bernhardt said.

Bernhardt told Taylor that he should declare the contract illegal and order it revised, because the prohibition on workers opting for less pay makes it more difficult for older people to get jobs.

The prohibition “should be stripped away,” Bernhardt said. “I don’t see any reason, if a more experienced person is willing to work at the same price, that he or she should be excluded because of their experience.”

But Taylor said the contract, which is typical of many pacts that include pay scales, also means more experienced workers get the benefit of being paid more if they can secure jobs. Taylor said he is not inclined to declare such a contract, and by implication, thousands of contracts throughout the state, illegal.

“It would throw the baby out with the wash,” Taylor said. “It would destroy their bargaining power altogether.”

A final decision by Taylor is expected within the next few weeks.

Times staff writer Sarah Klein contributed to this report.