Ask The Lawyer: Isn’t it against the law to discriminate against older workers?
OLDER WORKER THINKS HIRING PROCESS DISCRIMINATED
QUESTION: I’m 57, well-qualified and experienced, and looking for a job – but I can’t even get an interview. I believe a lot of the firms I apply to discriminate against “older” applicants. Sometimes it’s pretty clear from the job description, that the employer is only interested in younger workers (the posting will say “recent graduates” or “two to three years’ experience”). At other times I have to believe the firm has a policy against hiring more seasoned workers. Isn’t it against the law to discriminate against older workers?
ANSWER: What you’re describing, if true, is age discrimination under Michigan law. Whether it is also a violation of federal law is more of an open question.
In Michigan, there are two laws that protect workers from age discrimination: Michigan’s Elliott Larsen Civil Rights Act, and the federal Age Discrimination in Employment Act. The Michigan statute applies to any kind of age-based discrimination, whether it is discrimination against the young, middle aged, or the more mature. The federal statute only protects workers age 40 and over.
The two laws also differ in the kind of discrimination they protect against. Both protect older workers from discriminatory treatment, but federal courts are split over whether the federal statute helps job applicants who are victims of conduct that appears to be neutral, but has a discriminatory impact. If an employer’s job posting describes a position as appealing to “recent graduates” as you describe, that may have the effect of discouraging older workers to apply for a position in which they might do well. In 2016, the Eleventh Circuit Court of Appeals ruled in Villarreal v. R. J. Reynolds, 839 F.3d 958 that the Age Discrimination in Employment Act only applies to “disparate impact claims” brought by a worker who is already an employee. This spring, the Seventh Circuit in Kleber v CareFusion, 888 F.3d 868 (2018) ruled the other way – finding a job applicant could bring a disparate impact claim. The Seventh Circuit voted to rehear the Kleber case in June, and a decision is pending.
The problem with any claim brought by a job applicant is proof. In the absence of any statement by the prospective employers that they just don’t want to hire older workers, you would need to show either that the language of the job posting did, in fact, have the effect of discouraging older workers from applying, or show that an employer’s failure to hire older workers is part of a pattern of failing to hire members of your protected class. And to do that, you may need to dig deep into the hiring practices of the employer, which is not easy to do.
Sometimes, you won’t have to dig too deep. A recent Michigan decision involved a contract worker who had been hired, along with six other men, to work at an aerospace company. The aerospace company had promised to hire all seven contract workers as direct workers, with benefits, at the end of six months. In time, the firm hired six of the workers, but not the plaintiff, who was both more experienced and significantly older than any of the others. Because the plaintiff knew who had been hired, he was able to make his case.
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By: Daniel A. Gwinn, Esq.