A recent Federal Appeals court decision found that federal law protects job seekers against age discrimination and not just older workers who are already employed. The Age Discrimination in Employment Act ("ADEA") protects workers 40 years of age and older from discrimination on the basis of age in hiring, promotion, discharge, compensation, or terms, conditions or privileges of employment.
One way to show age discrimination is to assert a "disparate impact" on you versus younger employees by showing that younger similarly situated workers received preferential treatment. However, it has been unclear whether the disparate impact test was available for applicants to show age discrimination play a role in the company's decision not to extend an offer.
In Kleber v. CareFusion Corp., the plaintiff job applicant asserted that he did not receive an interview as general counsel due to his age. The defense asserted that ADEA claims of "disparate impact" are only available to current employees. However, the Seventh Circuit Court of Appeals split with other circuits and held that job applicants may show age discrimination and thus be entitled to relief through disparate impact claims. The court noted this interpretation "[I]s also more consistent with the purpose of the Act and nearly fifty years of case law interpreting the ADEA and similar language in other employment discrimination statutes." However, this conclusion is contradictory to a 2016 ruling by the full 11th Circuit Court of Appeals in Atlanta in Villarreal v. R.J. Reynolds Tobacco Co. In this instance, the court found that applicants may not bring disparate impact claims and that the ADEA only protects only workers who have “status as an employee.”
As more and more older workers compete for the same jobs with younger candidates, efforts to eliminate age discrimination becomes critical. For more information or if you believe you have suffered any type of workplace discrimination, please contact the dedicated Atlanta employment lawyers at Buckley Bala Wilson Mew LLP for an immediate case evaluation.