Supreme Court Declines to Decide if ADEA Covers Job Applicants



​The Supreme Court on Oct. 7 left in place an appeals court decision that the Age Discrimination in Employment Act (ADEA) does not apply to job applicants who allege a hiring policy adversely impacts older workers. As a result, many job applicants face an uphill climb in court when arguing that they've been discriminated against based on age. 

The Supreme Court declining review does not mean it has weighed in on the merits of lower court rulings. It often denies review because a split in authority on a legal issue hasn't yet arisen among the appeals courts.

We've gathered articles on the scope of the ADEA below.

7th Circuit Ruling Left Intact

The ADEA protects employees, but not applicants, age 40 and older from age discrimination through policies that have an adverse or "disparate" impact on them, according to a decision earlier this year from the 7th U.S. Circuit Court of Appeals. The 7th Circuit decided that requiring external job applicants to have no more than a certain number of years of experience, therefore, is not age discrimination. However, the ADEA does prohibit employers from making 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 discrimination is referred to as disparate treatment.

Other examples of prohibited disparate treatment against older applicants arguably include specifying that job ads on social media platforms be visible only to users who are below a certain age or requiring applicants to be "digital natives."

Other practices are specifying "recent graduates" in job ads, advertising only at college campuses and giving hiring priority to candidates from certain companies that may have younger workforces.

(SHRM Online)

EEOC Has Contrary Position

For years, the Equal Employment Opportunity Commission (EEOC) has advised that the ADEA applies to job applicants in so-called disparate impact cases, but in 2016 the 11th Circuit ruled otherwise. Then, in 2017, a California district court ruled that applicants may bring ADEA disparate impact claims. A panel of the 7th Circuit decided in 2018 that the ADEA does apply to job applicants' disparate impact claims, but the full 7th Circuit reversed and ruled that it didn't. Had the 2018 ruling been left in place, there would have been a split at the appeals court level.

(SHRM Online)

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

AARP Had Sought Review of 7th Circuit Decision

The AARP Foundation had asked the Supreme Court to reverse the 7th Circuit's decision. "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."

(SHRM Online)

Facebook Makes Changes to Ads in Response to Age Lawsuit

Earlier this year, Facebook settled age-discrimination claims challenging its targeted job ads. The company agreed to no longer target ads for jobs, housing or credit toward people of a certain age. It also agreed not to target ads based on race or gender.

(SHRM Online)

Google Pays $11M to End Applicants' Age Class-Action Lawsuit

Google has agreed to pay $11 million to end a class-action lawsuit involving 227 people accusing the company of systemically discriminating against job applicants who were over the age of 40. Under the settlement, parent company Alphabet Inc. must also train employees and managers about age bias, create a committee on age diversity in recruiting and make sure complaints are adequately investigated.

(SHRM Online)