The Age Discrimination in Employment Act (ADEA) prohibits discrimination against workers 40 and over. While the law prohibits discrimination in any aspect of employment, including hiring, it is unclear whether the ADEA prohibits a certain type of discrimination called "disparate impact" discrimination in hiring. One federal court ruled that it does not. Now, a second federal court has ruled the opposite.
Disparate impact discrimination occurs when a system, policy or practice appears to be neutral but actually results in members of a protected class receiving less favorable treatment. Discriminatory intent is not required to prove disparate impact. Such policies are illegal unless they serve a reasonable, non-discriminatory purpose.
Suppose a company chose to hire only Justin Bieber fans. That would likely keep a disproportionate number of people over 40 from getting jobs at that company. Even if its effect was unintentional, the policy might be illegal simply because it disproportionately excludes older folks. To defend itself against an ADEA claim, the company would have to provide a reasonable, age-neutral reason for the policy.
The Equal Employment Opportunity Commission has ruled that the ADEA prohibits disparate impact discrimination in hiring. In 2016, the 11th Circuit Court of Appeals ruled that job applicants cannot bring ADEA claims for disparate impact -- only for intentional discrimination. Recently, the 7th Circuit ruled the other way, allowing ADEA claims for disparate impact in hiring.
Since Maryland is in the 4th Circuit, neither ruling applies directly here. However, there appears to be a trend in favor of the EEOC's interpretation. Certainly, a reasonable argument can be made that the ADEA applies to job applicants with disparate impact claims. Ultimately, the U.S. Supreme Court may have to decide this split between two circuits.
Where might job applicants notice disparate impact discrimination?
If disparate impact claims by job applicants are allowed, one area of potential litigation is the targeting of job ads through Facebook and other social media platforms. Even if job ads are not intentionally targeted toward younger people, they may have a disparate impact against older workers by limiting viewership of the ad to:
- People with lower salaries (in states where salary histories can be queried)
- Workers with fewer years of experience
- Applicants who graduated in certain years
- Prospects with "young" interests like dating, homebuying, or certain music or entertainment
In determining whether disparate impact claims related to hiring are allowed, federal courts in Maryland will consider the reasoning between both courts' rulings and the EEOC's position. The success of an ADEA disparate impact lawsuit brought by a job applicant will depend in large part upon whether the plaintiff's attorneys can present a persuasive claim that such suits should be allowed.