Supreme Court Asked to Apply ADEA to Job Applicants

Allen Smith, J.D. By Allen Smith, J.D. April 23, 2019
Supreme Court Asked to Apply ADEA to Job Applicants

​Does the Age Discrimination in Employment Act (ADEA) protect job applicants as well as current employees?

The AARP Foundation is asking the U.S. Supreme Court to reverse an appeals court decision ruling from earlier this year that said it does not. In an April 23 petition to the high court, the foundation said the 7th U.S. Circuit Court of Appeals decision erroneously narrowed the reach of the ADEA and risked rendering "largely meaningless" prior Supreme Court rulings. The high court has not said yet whether it will hear the case.

"The 7th Circuit's decision is devastating to older job seekers," said William Alvarado Rivera, senior vice president for litigation at AARP Foundation, which is representing the plaintiff in his appeal of the decision. "It misreads the letter of the law and seriously undercuts its main purpose: to ensure that older, unemployed job applicants are treated fairly."

We've gathered articles on age discrimination from SHRM Online and other trusted media outlets. 

ADEA's Reach Limited

The plaintiff in the 7th Circuit case was 58 and had extensive law firm and in-house counsel experience when he applied for a senior counsel position at CareFusion Corp. The job posting sought candidates with no more than seven years of experience. The plaintiff was not interviewed for the position and the company hired a 29-year-old applicant who met but did not exceed the experience requirement.

The full 7th Circuit agreed with CareFusion that the ADEA permits only employees, not external job candidates, to bring claims that job requirements have an unlawfully disproportionate impact on older workers.

(SHRM Online)

Ruling Vacated Panel's Decision

Lower court rulings on the issue have been mixed:

  • The most recent decision overturned a decision by a 2018 panel of the 7th Circuit—not the full appeals court—that the ADEA permits applicants to bring claims of unlawful disproportionate impact in job requirements.
  • For years the Equal Employment Opportunity Commission (EEOC) has advised that the ADEA applies to job applicants in these so-called disparate impact cases, but in 2016 the 11th Circuit ruled otherwise.
  •  In 2017, a California district court ruled that applicants may bring ADEA disparate impact claims.

(SHRM Online)

California Challenge

The California lawsuit involved a claim that accounting giant PwC's aggressive recruitment of college students and recent graduates had an unlawfully disproportionate impact on older applicants. The plaintiffs argued that PwC generally did not post job openings for entry-level positions on its careers web site, as it did for more-experienced roles, and that the only way to apply to these positions was through the firm's campus recruitment program. Emily Nicklin, a lawyer with Kirkland & Elllis in Chicago, representing PwC, called the allegations false. "PwC devotes enormous resources to recruiting a diverse workforce. That includes hiring individuals at all experience levels and of all ages. Like hundreds of other employers, PwC recruits at colleges and universities and does so in accordance with the law," she said. But Daniel Kohrman, an attorney for AARP Foundation, claimed the company's reliance on college recruitment was unlawfully excessive.

(SHRM Online)

What Age Discrimination Looks Like

Approximately 72 percent of women and 57 percent of men have experienced age discrimination, according to AARP. Age discrimination doesn't just happen against applicants, but in hiring, firing, pay, job assignments, promotions, layoff, training and benefits. It can be hard to prove, but some clues may be all the new hires are young, the employer starts "lightening the employee's load," and the worker is encouraged to retire.

(The Motley Fool)

Bipartisan Bill Would Strengthen Protection for Older Employees

A bipartisan bill has been introduced in the U.S. House of Representatives and the Senate that would make it easier for older employees to prove when they are victims of age discrimination in the workplace. The House bill (H.R. 1230), introduced by Rep. Bobby Scott, D-Va., and the Senate bill (S.B. 485), introduced by Sen. Robert P. Casey Jr., D-Pa., would amend the ADEA.

(SHRM Online)

[SHRM members-only resource: SHRM Foundation's Effective Practice Guidelines Series, "The Aging Workforce: Leveraging the Talents of Mature Employees"

Reports: Older Workers Pushed Out of Jobs

The bill seeks to address concerns that a decade-old Supreme Court decision made it harder to prove age discrimination and that the EEOC consequently pursues fewer percentages of age claims. More than half of older U.S. workers are pushed out of longtime jobs before they choose to retire, suffering financial damage that is often irreversible, according to data analysis by the Urban Institute and ProPublica.

(SHRM Online)



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