7th Circuit Rejects Employee’s Age Discrimination Claim Involving Subjective Tests

October 13, 2020

No age discrimination occurred when an employer didn’t promote a 74-year-old employee who had failed a mandatory subjective test, the 7th Circuit recently ruled. The court said the employee failed to show objective evidence of discrimination other than that the test scorers knew his age. Therefore, it ruled in the employer’s favor.


Romuald Tyburski, then 74 years old, applied for a promotion with the Chicago Department of Water Management. As part of the application process, he was required to pass a three-part examination (two parts written and one oral). He passed the written parts but failed the oral exam after receiving a score of 42% when 60% was required to pass. Therefore, he wasn’t promoted.

Two chief operating engineers conducted and scored Tyburski’s oral exam. There were five questions, and each had a possible score of five points. The scorers multiplied the scores by four to obtain a possible total score of 100%. They used the city’s HR standard exam questions, answers, and scoring rubric to grade the exam.

Tyburski sued the city, alleging failure-to-promote, and hostile work environment claims under the Age Discrimination in Employment Act (ADEA). His main assertion under the failure-to-promote claim was that the city improperly scored his oral exam since it was subjective and therefore used the failing grade as a pretext (or cover-up for illegal discrimination) to deny him the promotion. The district court dismissed the case, and he appealed.

7th Circuit’s Ruling

The 7th Circuit recited the elements an employee must prove to succeed on an ADEA claim. First, he must be 40 years of age or older, and second, “but for” his age, he would have been promoted. One method the employee may use to defeat a request to dismiss his discrimination claim is to show:

  • He is a member of a protected class;
  • He was meeting the employer’s legitimate expectations;
  • He suffered an adverse employment action; and
  • Similarly situated employees who weren’t members of his protected class were treated more favorably.

In determining whether the city’s proffered reason for not promoting Tyburski was a cover-up for bias, the 7th Circuit considered whether it improperly scored his oral exam and used the failing grade as a pretext to deny the promotion. First, the appellate court said employers are permitted to set the necessary qualifications for a position, and courts don’t tell them what the requirements must be. Therefore, there was nothing inherently discriminatory in requiring Tyburski to pass an oral exam with specific requirements to be promoted.

Next, the 7th Circuit looked at the exam’s subjectivity. The city’s scorers used a standard rubric to evaluate candidates, which had bullet points and potential components to answer each question correctly. The appellate court acknowledged some subjectivity in the process but noted subjective criteria alone doesn’t suffice as evidence of pretext. Tyburski had to point to some objective evidence indicating the subjective evaluation was a mask for discrimination, but the court said he failed to do so.

Finally, the 7th Circuit noted Tyburski presented no evidence his age, rather than the quality of his answers, motivated the interviewers to fail him. Specifically, there was no evidence of pretext to explain the grading. To show pretext, he had to do more than simply allege the city’s stated reasons were inaccurate. He needed to have proof to support an inference there was an improper motivation proscribed by law.

Tyburski pointed to no evidence other than that the scorers knew his age. As a result, the 7th Circuit agreed with the trial court and ruled in the city’s favor. Tyburski v. City of Chicago, No. 18-3000 (7th Cir., July 1, 2020).

Bottom Line

The 7th Circuit’s ruling contains important reminders for employers. First, be certain to have stated qualifications for each job category and adhere to them. Courts won’t tell you what the requirements should be, but be sure they aren’t discriminatory in nature.

Second, nothing is inherently wrong with having subjective tests to decide which employees to promote. If you do so, however, be certain the scorers have a standard rubric to follow and help guide their scoring. The rubric provides some basis for why the scores turned out as they did. Moreover, using multiple scorers and averaging their scores, as the city did here, avoids the argument one person was acting discriminatorily.

This article, slightly modified to note recent updates, was featured in the October issue of the Great Lakes Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

Nathan Kollath
Nathan Kollath