Employment law question...totally hypothetical

Here’s the scenario (and even if there is some basis in real life, this is totally an imaginary setup). Suppose there was jobseeker who eked out a kind of living by applying for employment, then suing the employer for age discrimination when not offered the job. Imagine further that a company, knowing that said candidate was litigious, decided to hire this person with the sole intention of firing him during his probationary period.

What, besides common sense, would prevent a company from doing this?

The problem is that you are envisioning age discrimination lawsuits to be easier than they are. Most employers really want the best quality employees that they can get regardless of age. Even if they have an age bias, it is very easy to show why they hired someone younger for whatever reasons they want to argue. It would be rare to have an older applicant that is so stellar and younger applicants that are so terrible that would make this a realistic case. Finally, it would be difficult for the person in question to find a lawyer willing to take the case on such shaky grounds. The company’s lawyers are unlikely to just role over as well. They don’t want to have such a judgment or settlement on record either. Age discrimination cases do best in firings and layoffs, not in hiring.

Well, common sense should provide a pretty thick barrier in this case…

However, I can’t see any legal trouble they get themselves into by **hiring ** this person. They are discriminating against any other candidates due to their non-litigiousness, but that doesn’t sound illegal, just silly. The employee would have a hard time claiming damages from being hired.

Now, when it comes to actually **firing ** that person, then the employer could get into some trouble. The termination could be seen as illegal age discrimination, because the person is only in that situation due to their age being over 40. It could also be seen as retaliation for having made previous complaints, which is also illegal. Retaliation is usually easier to prove than discrimination.

Plus, the terminated employee is likely to be charged to the employer’s unemployment insurance account, contributing to higher UI premiums, regardless of any lawsuits. That’s the most straightforward reason not to hire anyone you think you will have to fire.

Finally, unless there is some type of contract (such as a union contract) “probationary period” almost never has any legal relevance, particularly not any legal relevance that benefits the employer.

IANAL, but as an HR person these are the reasons I’d advise against doing this.