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Court to try age-bias case based on ‘skills’ comment

An age-discrimination case based on a demand for “21st Century skills” is set for trial in Richmond federal court this month.

The case turns on what a school superintendent meant when he justified replacing the school system’s 60-year-old chief public information officer with her younger male assistant. The superintendent said he wanted “21st Century communication skills” and that the plaintiff’s assistant was “better at that.”

Debra Marlow began working in 1987 for the Chesterfield County Public School System, one of Virginia’s largest. As director of community relations, she also had spent time lobbying on behalf of the school system.

In 2004, the school system hired Tim Bullis as Marlow’s assistant director of community relations. In 2009, Marlow was offered a lower-paying job, and Bullis was promoted.

Marlow said she was forced into early retirement, so she could preserve certain retirement benefits. She cited as evidence of age discrimination the superintendent’s comment on Marlow’s lack of “21st Century skills” as his reason for shifting her into a lower-paying job to make way for the promotion of her younger male assistant.

The school board suggested that finances were the sole reasons for the superintendent’s decision, and it offered “voluminous evidence” to support its claim that the reference to “21st Century skills” was nothing more than a reference to a well-established skill set, which was a legitimate, non-discriminatory reason for the decision to change Marlow’s job.

Maybe so, the court allowed. There was no disputing the “overwhelming fiscal crisis” the school board faced in the spring of 2009, when the shortfall for the coming year swelled to $52 million.

The “21st Century skills” comment may have been a “gratuitous comment,” the court said. The school system argued the concept was a part of its six-year strategic plan.

But there also was evidence the superintendent may have seen a correlation between age and competence in the desired skills.

Evidence indicated that in August 2009, the superintendent presented a PowerPoint presentation to his staff that appeared to correlate age to status as a “digital native,” or as a “digital immigrant,” who was born before a particular technology was invented.

“Digital immigrants” were said to have a “thick accent” when operating in the digital world, in “distinctly pre-digital ways.” For instance, a “digital immigrant” might telephone someone to ask if his e-mail had been received.

The evidence of “potential age bias” by the superintendent meant the court had to deny summary judgment to the school system.

The court said it was up to a jury to decide whether there had in fact been any wrongdoing by the school board. Richmond U.S. Magistrate Judge Dennis W. Dohnal denied the school board’s motion for summary judgment.

Trial is set for Nov. 17, according to Marlow’s lawyer, Craig Curwood.
By Deborah Elkins

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