Requiring job applicants to have no more than a certain number of years of experience is not age discrimination, the full 7th U.S. Circuit Court of Appeals has decided.
Two definitions are crucial to understanding this and other employment discrimination cases:
- Disparate impact: Employer policies can unintentionally adversely affect, or have a disparate impact on, specific individuals protected by civil rights laws. For example, a limit on the number of years of experience arguably screens out more candidates ages 40 and older than younger ones. The Age Discrimination in Employment Act (ADEA) protects employees 40 and older from age discrimination through policies that have a disparate impact, but it does not protect applicants, according to this Jan. 23 decision, which overturned a 2018 ruling by a panel of the 7th Circuit.
- Disparate treatment: Managers sometimes make statements that show an intent to discriminate (e.g., "I don't want that person to work for me because he is too old to do this job"). Such statements are said to show disparate treatment. The ADEA protects employees and applicants from disparate treatment.
The ruling was friendly to employers, but they should proceed cautiously, according to Robert Cooper, an attorney with Buchalter in Los Angeles. Job applicants may be able to bring disparate-impact claims under state law or under the ADEA outside the 7th Circuit's three states: Illinois, Indiana and Wisconsin.
Millennial Landed the Job
The plaintiff in the case applied for an attorney position at CareFusion Corp., then sued under a disparate impact liability theory after he wasn't chosen. He challenged the requirement that job applicants have three to seven—and no more than seven—years of relevant legal experience. The plaintiff was 58 at the time he applied and had more than seven years of experience. A 29-year-old applicant who met but did not exceed the prescribed experience requirement was selected.
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The full 7th Circuit agreed with CareFusion that the plaintiff could not bring a disparate-impact claim under the ADEA. The ADEA's plain language makes it clear that disparate-impact claims are available only to employees, including internal job applicants, the court decided. It noted that disparate-treatment claims, such as if someone doesn't want to hire an individual because she looks too old, are available to job applicants under the ADEA.
"The court's decision means that employers who use experience [limits] can breathe a sigh of relief, especially if the employers are in the 7th Circuit states of Illinois, Indiana or Wisconsin," said Robin Shea, an attorney with Constangy, Brooks, Smith & Prophete in Winston-Salem, N.C. "But, in my opinion, the dissenting judges made some very compelling arguments that the ADEA does in fact prohibit disparate-impact discrimination against job applicants, so I'm not sure the court's decision is the end of the issue."
The judges who disagreed with the ruling said that the statutory language was ambiguous and should be interpreted consistently with the broad purpose of the ADEA to prohibit age discrimination. "A central goal—arguably the most central goal—of the statute was to prevent age discrimination in hiring," the dissent wrote.
"In any event, there have always been legitimate, nondiscriminatory reasons for an employer to have an experience cap—or, put another way, to avoid hiring overqualified workers," Shea said.
If a job is beneath the applicant's experience, he or she may resume looking for a better job immediately after being hired, she noted. Also, an overly experienced person may be unhappy with the pay and benefits that come with the job.
The overqualified worker may become bored at work, or try to get engaged by taking on more interesting tasks that really aren't part of the job and neglect the more elementary tasks that he was hired to perform, Shea explained. Or she may not get along with a supervisor who has less expertise than she does.
"A very experienced individual may have none of these issues, but because one of HR's key roles in hiring is to minimize the risk of a bad hire, HR may choose to stick with less-experienced individuals in entry-level jobs," she said.
And even though age and experience often are related, that is not always the case. A younger worker can be overqualified. "I don't think it's fair to assume that all experience caps are a subterfuge for age discrimination," Shea stated.
Joel Rice, an attorney with Fisher Phillips in Chicago, advises employers against culling out candidates based on years in the workforce. Instead, he recommends that employers focus on the essential experience they are seeking in a job. If recruiting for an IT position, evaluate the applicants' familiarity with certain systems, for example, rather than just the number of years of experience, he said.
Fine Line Between Disparate Impact and Disparate Treatment
Other employer practices aside from experience limits that might be considered to have a disparate impact include:
- Specifying "recent graduates."
- Advertising only at college campuses.
- Giving hiring priority to candidates from certain companies that may have younger workforces.
Shea said other hiring practices that are intentional discrimination include:
- Advertising vacancies on Facebook or other social media and specifying that the ads be visible only to users who are below a certain age.
- Requiring applicants to be "digital natives."
Although these two examples resemble disparate impact, both "seem to be deliberately screening out candidates based on age, so I think they are more accurately characterized as disparate treatment," she said.
Hire the Best Person
Regardless of what the law requires, Shea said employers should "always strive to hire the best person for the job based on work experience appropriate for the job, education, and necessary social and other skills that may be needed."
She noted, "Age should not be a consideration, unless you're hiring models, child actors or athletes. If you adopt hiring criteria that could arguably have the effect of screening out older applicants or discouraging them from applying, really scrutinize those criteria and make sure you can justify them."