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49 J.C. & U.L. 1 (2024)
Is Overqualification a Proxy for Age Discrimination or a Legitimate, Nondiscriminatory Reason for an Adverse Employment Decision?

handle is hein.journals/jcolunly49 and id is 10 raw text is: JOURNAL OF COLLEGE AND UNIVERSITY LAW IS OVERQUALIFICATION A PROXY FOR AGE DISCRIMINATION OR A LEGITIMATE, NONDISCRIMINATORY REASON FOR AN ADVERSE EMPLOYMENT DECISION? MARY ANN STRONG CONNELL AND NORA A. DEVLIN* Abstract Since Congress passed the Age Discrimination in Employment Act (ADEA) in 1967, employers, employees, litigants, and courts have wrestled with the question of whether basing adverse employment decisions on seemingly age-neutral factors, such as closeness to vesting of pension benefits, salary, years of service, or overqualification, are proxies for age discrimination. Or, in the alternative, are these factors legitimate, nondiscriminatory reasons for negative employment decisions? The Second and Ninth Circuits have rejected the overqualification defense,describing the term overqualified as a euphemismfor too old, while the Fifth, Sixth, Seventh, Eleventh, and D.C. Circuits have found overqualification to be a reasonable, nondiscriminatory basis for refusing to employ an applicant. This article discusses the origin and development of the ADEA, the age proxy theory, and decisions of both appellate and district courts analyzing the issue of overqualification as a proxy for age discrimination in violation of the ADEA. The authors have presented a hypothetical framing this issue in the context of an academic hiring situation and concluded the article by offering recommendations for how employers may prevent age discrimination in their hiring and employment practices. Mary Ann Strong Connell: B.A., University of Mississippi; M.A., University of Mississippi; MLSci., University of Mississippi; J.D., University of Mississippi; LL.M., Harvard Law School. Ms. Connell was formerly General Counsel for the University of Mississippi and a former president of the National Association of College and University Attorneys. She is currently Of Counsel Emerita with Mayo Mallette PLLC, Oxford, Mississippi. Nora A. Devlin completed her PhD in higher education at Rutgers University in March 2023. She previously worked as the editorial assistant for the Journal of College and University Law. Dr. Devlin is now Assistant Director of Institutional Effectiveness at her alma mater, Eastern University in St. Davids, Pennsylvania. Vol. 49, No. 1 1

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