Employment anti-discrimination laws are written to protect workers, but they can also be valuable to employers as well. Businesses function more productively when everyone (employees and management) understands the rules and expectations around hiring, firing and management of workers.
Unfortunately, employment laws in the United States are not always as clear as they should be. This leads to issues of interpretation, and eventually, litigation. As just one example, consider the Age Discrimination in Employment Act, or ADEA. Under the law, employees age 40 and older are protected against disparate treatment based on their age. They are also protected from policies that create a “disparate impact” on older workers, even if age is not a specifically stated reason for a given policy.
But do these protections apply to job candidates, or just employees? The answer to that question is difficult because of numerous contradictory court rulings in recent years. Earlier this year, after an appellate court ruled that the ADEA does not protect job applicants, the AARP foundation asked the U.S. Supreme Court hear the case and reverse the appellate court’s decision.
The 58-year-old plaintiff in the lawsuit was an experienced lawyer who had applied for a senior counsel position at a large company. The job posting required that candidates should have no more than seven years of experience – a requirement with an arguably disparate impact on older workers. The man was not interviewed or chosen for the job. Instead, it was offered to at 29-year-old.
The plaintiff tried to bring a disparate-impact claim under the ADEA, but the company argued that job applicants are not protected from this behavior under the act. In a ruling earlier this year, the 7th Circuit Court of Appeals agreed.
The question of whether a given employment law applies to job candidates is an important one. Yet court rulings about the ADEA have been mixed, no doubt leading to confusion among employers and employees. We must hope that the U.S. Supreme Court decides to hear and ultimately settle this issue.