Under the Age Discrimination in Employment Act (“ADEA”) of 1967, employers cannot discriminate against older workers, including employment practices and hiring policies that have a “disparate impact” on older workers (workers who are over 40 years of age). A “disparate impact” means that, while the policy might not intentionally try to discriminate against older workers, it still ends up having the same effect, as a discrimination lawyer trusts can explain.
The Seventh Circuit Ruling
The Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – recently held that the disparate impact provisions of the ADEA protect both outside job applicants and internal job applicants. This means that company hiring policies that disparately impact – i.e. harm – applicants who are over 40, applying from inside or outside of the company, are illegal. In the case, a 58-year old attorney applied to a job that was looking for experience of “3 to 7 years” but no more than 7, thereby placing a cap on how many years of experience the applicant can have. This, in effect, constituted discrimination against older workers because it set a maximum number of years that impeded more experienced (older) workers from applying, according to the plaintiff.
The plaintiff, after not getting the job, filed suit in federal court, but the court dismissed his claim because it found that the ADEA did not permit disparate impact claims by outside job applicants like the plaintiff. The issue on appeal, thus, was about whether he was covered as an outside job applicant. The Seventh Circuit answered the question in the affirmative: Noting that the purpose of the statute is to protect older workers during hiring, the court held that the age limitation was problematic because it disparately impacted older workers, even if that was not the intention. Despite having to follow this rule, employers can argue that a limitation is valid if it is necessary for the performance of duties for the position.
What the Case Means
The case means that this kind of cap – saying there is a maximum number of years of experience an applicant can have – can disparately impact applicants, and that this kind of impact is unlawful because it prevents these older workers from accessing jobs as a result of discriminatory policies. These kinds of policies should be reviewed by all companies that currently use them and are within the jurisdiction of the Seventh Circuit. Older workers, on the other hand, should note when companies are using such phrases in their hiring practices, because it could be discrimination against older workers under the ADEA.
