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CAN A JOB APPLICANT SUE FOR AGE DISCRIMINATION?

QUESTION: My company is looking to fill a few entry-level positions. Our Human Resources department prepared a job announcement which stated we are looking for “recent college graduates.” After a several weeks, we filled the positions. Last week we received a letter from an unsuccessful applicant, age 52, threatening to sue. He said our announcement and hiring practices are discriminatory because we automatically disqualified older applicants who graduated college a while ago. Is this something I should worry about?

ANSWER: You should probably get out your worry beads.

The Age Discrimination in Employment Act (ADEA) makes it illegal to limit employment opportunities by age, unless there is a bona fide reason for excluding older workers (often related to strength and reflexes). Whether an employer can legally keep older workers out of the pool of job applicants by using language — like “recent college graduates” – that does not explicitly reject older candidates is currently being debated.

Last year, the Eleventh Circuit Court of Appeals in Villareal v R.J. Reynolds held that an unsuccessful applicant for a job cannot file a claim of “disparate impact” discrimination under the ADEA. An action, policy or rule has a “disparate impact” when it is neutral on its face, but tends to impact a specific group of people in practice and is not related to skills needed for the job.

In Villareal, the employer limited applicants to people “two to three years out of college” and also told its HR department to stay away from candidates with eight to 10 years of experience. As a result, only 19 out of the 1,000 people eventually hired were over 40. Even though the phrasing of the job posting was neutral, like the posting in your case, it had a “disproportionate impact” on older workers, most of whom graduated college years ago, from consideration. In a win for the employer, the Circuit Court stated that disparate impact claims can only be brought by employees, not applicants.

So, why should you worry? The Villareal case is not the law in all circuits, and it is headed for the Supreme Court. Lawyers for groups representing older workers — like the AARP – are helping to make the case for reversing the decision.

When looking for a new employee, you should play it safe: Avoid language that would unnecessarily exclude older workers (or any specific group) from consideration. That doesn’t mean you can’t fairly describe what you’re looking for. Terms like “entry level” and “no experience necessary” are not discriminatory. And, if the job requires use of multiple software systems, that information should be included in your posting – allowing tech-savvy seniors to apply.

To ensure you have up-to-date information on your rights as an employer under the ADA, you may wish to consult an attorney. The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
[email protected]
www.gwinntauriainenlaw.com