Quick, Stop Hiring Old People! How the Eleventh Circuit Opened the Door for Discriminatory Hiring Practices under the Adea

By Pitsch, Samantha | Washington Law Review, September 1, 2017 | Go to article overview

Quick, Stop Hiring Old People! How the Eleventh Circuit Opened the Door for Discriminatory Hiring Practices under the Adea


Pitsch, Samantha, Washington Law Review


INTRODUCTION

Imagine a business owner is looking to hire new employees. The owner hires a recruiting firm to help choose from all of the applications received. Ideally, the business owner would like someone to bring in new and fresh ideas to the business. In the pursuit of this goal, the business owner asks the firm reviewing the applications not to consider any applicants who have been out of college for more than five years or have five years of experience. This requirement could be seen as discriminating against an employee based on age. It may not be intentional discrimination because the business is not directly stating that it will not hire persons of a certain age, but it would disparately impact certain age groups and therefore could be discriminatory.1 Under existing disparate impact law, it should follow that businesses could not lawfully maintain these policies. Surprisingly, in 2016 the Eleventh Circuit decided, en banc, that employers could discriminate based on age if the person being discriminated against was an applicant for employment and not yet an actual employee.2 In its decision, the court held that ADEA protection does not cover an applicant for employment;3 therefore, policies of hiring only people who have been out of college for a certain amount of time with certain amounts of work experience are legal. The court's determination is surprising given that it was based on a statute that was created to protect older persons from discrimination in the workplace.4 Is the Eleventh Circuit correct in its interpretation of the ADEA? This Comment argues that the court is mistaken and that the ADEA does in fact cover applicants for employment. Additionally, this Comment suggests that Congress should amend the ADEA to include the terms "or applicants for employment" to make it explicitly clear that the law covers applicants for employment.

Congress passed the ADEA in 1967, three years after passing Title VII, the federal law prohibiting discrimination against employees on the basis of sex, race, color, national origin, and religion.5 After requesting a study from the Secretary of Labor,6 Congress recognized a trend of businesses neither hiring nor promoting older persons.7 Congress passed the ADEA to combat this trend and to ease older persons' abilities to get and maintain jobs.8 The ADEA has two sections forbidding discrimination by an employer.9 First, section 4(a)(1)10 of the ADEA makes it unlawful for an employer to "fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."11 Second, section 4(a)(2) states that an employer may not "limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age."12

Under these two sections, the ADEA covers two different types of claims: disparate treatment and disparate impact.13 The first type, disparate treatment, allows plaintiffs to make claims of intentional discrimination against an employer.14 The second type was recognized in 2005, when the Supreme Court held that section 4(a)(2) of the ADEA also allows employees to bring disparate impact claims.15 Disparate impact claims focus on employment policies that impact one group of people more than others and do not require a court to find intent on behalf of the employer.16 One question left unresolved by Congress and the Supreme Court, however, is whether applicants for employment are also eligible to make disparate impact claims.

Since its passage in 1967, courts have struggled to determine who is eligible to bring claims under the ADEA and on what grounds. In search of guidance, courts have largely looked to Title VII cases due to the statute's similar language and intent.17 The courts have also turned to the language of the ADEA, its legislative history, and the Equal Employment Opportunity Commission's (EEOC) interpretation of the Act when deciding what types of claims can be made under the ADEA. …

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