Do your job postings violate the ADEA?


 

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Anyone who has done a job search has seen the familiar bullet points of preferred qualifications on a job posting: level of education, type of degree, number of years’ experience, and, occasionally, even number of years since graduating college. Often when an employer lists a preferred number of years since graduating college, it is seeking a less experienced candidate. It seems reasonable that the employer may want to let applicants know when a position is entry-level. However, as of this February, it is becoming increasingly unclear whether guidelines such as these may unfairly impact job applicants over the age of 40 in violation of the Age Discrimination in Employment Act.

Circuit split may lead to a ruling from the Supreme Court

Last fall, an unsuccessful job applicant sued R.J. Reynolds Tobacco Co. alleging that its screening guidelines for job applicants--targeting candidates freshly out of college and weeding out those with more experience--had an unlawful disparate impact on older applicants in violation of the ADEA. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 [129 FEP Cases 1031] (11th Cir. 2016). The Eleventh Circuit dismissed the case, finding that the ADEA only protects against facially neutral practices that have a disparate impact on current employees, not applicants for employment. So far so good. But then in February, two things happened that may upset that ruling. First, the Villarreal plaintiff petitioned the Supreme Court for certiorari. Then, just two weeks later, the Northern District of California rejected the Eleventh Circuit’s ruling and held that the ADEA clearly does allow job applicants to bring disparate impact claims. Rabin v. PricewaterhouseCoopers LLP, 2017 BL 49868 [129 FEP Cases 1715] (N.D. Cal. February 17, 2017).

Distinguishing settled law from the current debate

The pertinent question is where this leaves employers seeking entry-level employees in the meantime. There is no clear answer to how the circuit split may ultimately resolve. Part of the problem is that Congress left a passive aggressive question mark on the issue by amending the analogous Title VII provision over 45 years ago to include job applicants, yet never taking the initiative to amend the ADEA in the same way.

 What we do know is that no specific guideline has been struck down yet as having an unlawful disparate impact on protected-age applicants. The Rabin court did not even reach that question as it was merely decided on a motion for judgment on the pleadings. We also know that facially neutral practices that discriminate against actual employees are unlawful. Thus, employers even in the Eleventh Circuit must remember that neutral hiring practices which unfairly affect current employees, who seek other positions within the company, may still be prohibited by Villarreal.

So… can I still recruit recent graduates?

This doesn’t mean that employers can’t continue to recruit recent college graduates, or even seek them out at campus job fairs, for example. But it does mean that employers should be cautioned not to maintain bright line rules against hiring applicants that have over a certain number of years’ experience solely because of that experience. Employers would be well advised to take a more holistic and inclusive approach. For example, they could state that the position does not require a particular level of experience, rather than limiting the amount of experience preferred candidates may have. And, as always, employers should keep a close eye on the holdings of their home circuit.

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