Earlier this year, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (ADEA) does not prohibit discrimination against older job seekers — only existing employees. Although the Seventh Circuit only covers Wisconsin, Illinois and Indiana, the ruling is final in those states unless the U.S. Supreme Court overturns it. Now, the AARP Foundation has asked the high court for a hearing on the matter.
“The 7th Circuit’s decision is devastating to older job seekers,” said a spokesman for the AARP Foundation. “It misreads the letter of the law and seriously undercuts its main purpose: to ensure that older, unemployed job applicants are treated fairly.”
The case on appeal involves a 58-year-old man who had extensive experience when he applied for the position of senior counsel at a company called CareFusion Corp. Unfortunately, the company’s job posting specified that applicants have no more than seven years of experience. The 58-year-old was arguably much more qualified for the job, but a 29-year-old who did not exceed the experience requirement was hired instead.
The Seventh Circuit held that the company had done nothing wrong by limiting its hiring to younger, less experienced applicants because, the court claimed, the ADEA doesn’t allow external job candidates to bring disparate impact claims of discrimination. A disparate impact claim, in essence, argues that a facially neutral policy or practice has the effect of discriminating against a protected group.
What does the ADEA say about hiring?
The ADEA reads, in part, as follows:
“It shall be unlawful for an employer-
“(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”
Moreover, the Equal Employment Opportunity Commission has for years advised companies that the ADEA applies to job applicants, including in disparate impact cases.
Age discrimination is widespread
According to AARP, approximately 72% of women and 57% of men have experienced age discrimination. It occurs during hiring, but also in pay, benefits, job assignments, promotions, training, layoffs and firing. According to the Urban Institute and the nonprofit newsroom ProPublica, over half of older workers in the U.S. will be forced out of their jobs before retirement, often suffering irreversible financial damage.
Unfortunately, it can be hard to find a “smoking gun” when it comes to age discrimination. Often, a showing that certain policies or practices disparately impact workers 40 and older will point strongly in the direction of discrimination.
Should job applicants be allowed to complain if they can prove they weren’t hired based on policy that had a disparate impact against older people?