In a typical case alleging discrimination, the employer will have the burden of establishing the non-discriminating business reasons for the adverse decision.

Once those reasons are established, the burden shifts to the employee to prove that the stated reasons are a pretext for discrimination.

In most instances, the employer advances objective reasons for the decision.

Objective reasons might include failure to have required certificates, lack of required education or experience or a record of documented poor performance.

However, sometimes the employer must rely on subjective reasons. Consider these facts on an age discrimination case.

A 60-year old teacher worked for her school corporation on a part-time basis for almost 25 years. Over the next three years, she unsuccessfully applied for a full-time position. The individuals hired, instead of her, were 28 and 31.

The teacher claimed she was denied the full-time positions because of her age.

Remember, she was 60 years old and the two individuals were half her age.

The employer offered four reasons for the decision. First, it claimed she had been "an average" part-time teacher, and they were looking to hire an "above average" teacher. This was clearly a subjective reason. Second, the school employer argued that generally, the other (and younger) teachers were "better qualified." This again was subjective.

The school employer also had two objective reasons. The teacher did not have experience in classrooms with large groups of students, and she did not have the same certifications held by the younger teachers.

Did the employer sustain its burden of establishing non-discriminatory reasons for its decisions? The court said yes. It held that when possible, the employer should establish that it relied upon objective reasons for its decisions.

However, this is not an absolute rule, and an employer can rely upon subjective criteria. However, even when this occurs -- as often it might -- it is best for the employer to augment the subjective reasons with objective ones. In the reported case, the employer did so, and it prevailed in the discrimination case.

Opinions expressed solely are those of the writer. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.