Age Discrimination in Hiring: Still an Age-Old Question 28 Apr 2017

The Age Discrimination in Employment Act turns 50 this year, meaning that it was already in effect for ten years before today’s youngest class of protected workers was born. To put this into perspective, the Act was signed into law by President Lyndon Johnson, a mere three years after the landmark 1964 Civil Rights Act.

The law’s intent is to prevent discrimination against persons over 40 years of age, and provides civil remedies if discrimination can be proven. Smaller employers (20 or fewer employees) are exempt, but otherwise it applies to all employers in the U.S.

The ADEA includes a broad ban against age discrimination, and also specifically prohibits:

• Discrimination in hiring, promotions, wages, and employment terminations and layoffs.
• Statements of specifications in age preference or limitations.
• Denial of benefits to older employees (though courts have held they may be reduced to achieve the same cost level as benefits for younger employees)
• In most sectors, it also prohibits mandatory retirements.

How Well is It Doing to Eliminate Age Discrimination in Hiring?

If you look at what’s happening in the courts, that answer would be No.

Just last month, a jury in Fresno, California awarded $1.68 million against Bank of the West to Barbara Barkley, who she said was terminated from her managerial position with the company in 2014 because of her age.

“Ms. Barkley, who was 61 years old when she was terminated, believes she was pushed out of her position so she could be replaced with a younger, attractive assistant manager,” says L.A. Attorney Cortney Shegerian. The monetary award included both compensation for lost wages and emotional damage.

The U.S. Supreme Court may soon be hearing a case that could have a major effect on a plaintiffs’ ability to prove age discrimination.

Villareal v. R.J. Reynolds is an age discrimination case that could set a precedent for how the courts view age discrimination. The case centers around Richard Villarreal, who applied for a job as a territory manager at R.J. Reynolds Tobacco in 2007, when he was 49. Villarreal didn’t get the job, and he didn’t follow up after not getting a response from Reynolds. Then in 2010, Villarreal was contacted by a San Francisco law firm, which told him the reason he wasn’t hired was that he was too old.

A whistleblower had contacted the firm and told them Reynolds had provided a set of guidelines to a contractor for filtering resumes. One of the guidelines stated the contractor should stay away from anyone who had been in “sales for 8-10 years.” Villarreal’s attorneys sued Reynolds under the ADEA. Reynolds won in the lower federal court and on appeal to the full 11th U.S. Circuit. Now Villareal’s attorneys have appealed the case to the Supreme Court.

Other Evidence of Age Discrimination Being Gathered

A recent study by David Neumark, a professor of economics at UC Irvine, concluded that call-back rates for interviews drop steadily with the age of the applicant. Neumark and two other economists involved in the study sent out 40,000 resumes for thousands of real jobs. The resumes for any given job were identical except for age. Younger-age applicants were called back twice as frequently as applications showing the person to be in their 60’s.

The Illinois Attorney General has opened an investigation after a 70-year-old man called her office and complained that he’d been unable to use a resume building tool on a job search site. The AG has sent letters requesting information from job website companies she’s investigating, including sites like CareerBuilder, Jobr, and Monster.) She is seeking internal documents that may indicate whether there was intent to discriminate baked in to their electronic job applications.

The problem was the drop-down menu that required you to select the year when you graduated or got your first job. Those dates only went back to 1980, which could exclude anyone over age 52.

Best Practices Recommendations

If your company uses any of these outside services, or if you have your own electronic job application on your website, it would be a good idea to check those drop-down menus for date ranges.

Your job descriptions have most likely already been vetted, but it’s also wise to check over any internal documents used by your department or by company hiring managers to make sure they don’t contain any language or screening criteria that show a preference for persons under age 40, such as “recent college graduates” or “2-4 years’ experience”. Remember if you are sued, internal documents like these can be subject to legal discovery.

With Americans’ life expectancy continuing to rise, the aging of the Baby Boomer population, and Social Security benefits facing an uncertain future with potential raises to the SS retirement age, there are more pressures than ever before for older workers to remain in the workforce. In this environment, vigilant enforcement of age discrimination laws can be expected to continue.