Can Employers Take Only Younger Job Applicants?

Best Age Discrimination Lawyers Reply: What Can I Do I Was Fired Because Of My Age, But I’m Under 40 Years Old? Can I sue if a company will not even interview older candidates for an open position? Can a company refuse to hire me because I have too much experience – which is code for saying I’m too old? 

There are those things in life that pop up that just let you know how old you are. This week, I was talking with a bunch of younger attorneys and made a Captain Caveman reference. None of the lawyers got the reference to the late 1970s, early 1980s Hanna Barbara cartoon. It made me understand the age gap – like having to explain needing to rewind a videotape before returning the movie to blockbuster, or the sound that dial up makes while waiting to connect to the internet by

phone line. Hell, I remember having to read a printed magazine while waiting five minutes for each page of the online publication I wanted to read on AOL. So yeah, I’m feeling a little older now, which brings us to today’s employment discrimination blog by our “experienced” employees’ attorneys…

Age discrimination claims have some quirks that make them different than race/color, religion, gender/sex, national origin, and disability discrimination claims. The latter are protected classes that have their employment rights established under Title VII of the Civil Rights Act of 1964 and, in Ohio, at Ohio Revised Code § 4112.01. On the other hand, age discrimination and workplace rights flow from the Age Discrimination in Employment Act (“ADEA“) and separately in Ohio from R.C. § 4112.02(N), R.C. § 4112.05, and R.C. § 4112.14. Unlike the Title VII protected classes (race/color, religion, gender/sex, national origin, and disability discrimination), age claims have shorter statutes of limitation – meaning you have less time to pursue the claims under Ohio law; and you face an election of remedies – which means that if you chose one type of age discrimination claim, you are precluded from bringing another type of age discrimination claim. Additionally, depending what type of claim that the older employee pursues, there is different types of damages that are available. Still more, while proving that individuals outside the protected class were treated better or that the employee was replaced by someone outside the protected class after being fired; this is much clearer for the Title VII protected classes. For example, if a black employee is fired, it is much clear that he or she was replaced by a white employee. It is much clearer that a woman worker is replace by or loses a promotion to a man; same for a Jewish or Muslim employee being replaced by a Christian employee or a Hispanic or Asian employee being replaced by a native born American, white employee. While is it not as clear for age discrimination claims as the replacement employee does not need to be outside the protected class (firing an a 62-year-old employee to replace her with a 44-year-old worker can be the basis of the claim), but the employee has to be substantially younger – a term that is not exactly defined and is often disputed by courts and litigants (firing that 62-year-old employee to replace her with a 60-year-old worker will most probably not cut it). And, as our employment discrimination lawyers have blogged about before, for the Title VII employment claims (except for disability), these claims could be made in reverse – firing a Caucasian employee because of a preference for African American employees, or promoting a female employee over a male, can still be the basis of a discrimination claim. (See Race Discrimination Lawyer: What Is Reverse Discrimination Claims; National Origin Discrimination Claims Can Be Based On Reverse Class; Can White People Sue For Race Discrimination?; Matt Damon Is Right. Considering Race In Hiring Is Discriminatory And Unlawful). But, your boss, manager, or the owner of the company that you work for is free and clear to fire a 27-year-old worker and replace him with a 58-year-old employee, or obviously promote the more experienced older worker over a substantially younger and less experience worker – which makes sense. (See Reverse Age or Disability Employment Discrimination? No Such Thing).

The other practical difference with age discrimination claims is that employers can see the protected class coming and preventively fire an employee with no liability for wrongful termination. That right, an employer can arguably fire every employee when they hit 39 years and 364 days old and not be liable. So, one way for employers to avoid liability for age discrimination cases is to fire every employee before they reach the age of 40.

The Seventh Circuit Court of Appeal just handed employers another tactic to avoid claims in the recent case of Kleber v. CareFusion Corp., No. 17-1206 (7th Cir. 2019), which was decided by all the judges and reversed the original decision by the typical three judge panel. Let’s first o over the facts before getting to the legal holding by the United States Court of Appeals for the Seventh Circuit.

Medical technology company, CareFusion, advertised a job opening for attorney with “3 to 7 years (no more than 7 years) of relevant legal experience.” Kleber did not fit these criteria because at 58-years-ol, he had decades of legal experience, including as general legal counsel at Dean Foods and CEO of a dairy trade group. So, this was not an unqualified applicant. But, the employer chose not to even interview him, and eventually hired 29-year-old applicant for the role.

Obviously, given that we are talking about what happened in court, Kleber filed a lawsuit asserting that the cap of seven years’ experience had a clear disproportionate impact on older applicants and thus, violated the ADEA. In fact, none of the parties disputed the common-sense conclusion that younger workers were less likely to have seven-year experience while older workers would have more. Our employment discrimination lawyers have seen tactics like this where the employer sets a lower or entry level pay scale that is less likely to attract older workers, but that still gives the older workers the choice to work for that pay.

The United States Court of Appeals for the Seventh Circuit address this situation as a “disparate impact” type of claim, which means that there is a facially neutral policy that affects a protected class, in this case being age, more than those outside the class. You can see that facially neutral just means that it does not mention the protected class no matter how absurd the requirement – like here – what employer says I want somebody with 20 years less experience for the same cost as the less experienced applicant?  The employer argued its requirement as being “based on the reasonable concern that an individual with many more years of experience would not be satisfied with less complex duties or comfortable taking direction from an attorney with less experience which could lead to issues with retention.” To me, this sounds a lot like, older people may not take kindly to a much younger boss.

That being said, the case did not turn on this point. Instead, the case focused on whether applicants were covered under the language used in the statute. The United States Court of Appeals for the Seventh Circuit looked at the specific language of § 4(a)(2) of the ADEA, which addresses the disparate impact claims, and held that older applicants cannot state a claim under this statute. The specific language at issue makes it unlawful for an employer “to limit, segregate, or classify his [sexist statute language alert] 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 an individual’s age.” The majority of the judges held that by its very terms § 4(a)(2) limits its application to “employees” and does not mention applicants, which has a very different meaning than employee. Indeed, the majority went to dictionary to confirm that an “applicant” has no “status as an employee.”

To support its conclusion further, the majority of judges compared the language in § 4(a)(1) of the ADEA, which addresses the disparate treatment. In this section, the language specifically makes it unlawful for an employer “to fail or refuse to hire” an individual because of his or her age. Given that one section specifically addresses applicants, the majority concluded that Congress must of specifically excluded that same language from § 4(a)(2). The opinion states: “To conclude otherwise runs afoul of the Supreme Court’s admonition to take statutes as we find them by giving effect to differences in meaning evidenced by differences in language. … Congress’s choice to add “applicants” to § 703(a)(2) of Title VII but not to amend § 4(a)(2) of the ADEA in the same way is meaningful.”

Given this decision, employers may feel emboldened to create facially neutral job listings that clearly limit the ability of older workers to meet the base qualifications – like must have had driver’s license less than 15 years or must not be more than 10 years removed from graduating from college. This seems absurd.

Thankfully for us employees here in Ohio, the United States Court of Appeals for the Seventh Circuit decision is not the binding law here as the Seventh Circuit covers Illinois, Indiana and Wisconsin. Furthermore, there are some conflicting opinions from other courts on this subject.

If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with someone younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. Call our Cleveland attorneys at (216) 291-4744. Call our Columbus attorneys at (614) 335-4685. Call our Cincinnati attorneys at (513) 818-3688. Call our Toledo attorneys at (419) 960-5926.

Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss told me that I need to retire” or what happened on “my job.”

Disclaimer:

This employment law website is an advertisement. The materials available at the top of the age discrimination blog page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking “What should I do about my boss keeps telling me I’m too old”, “I’m being discriminated against because of my age,” or “How do I sue for age discrimination?, your best option is to contact an Ohio attorney to obtain advice with respect to any age discrimination claim questions or any particular employment law issue that you may have. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship for your employment law needs. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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  • The use of the internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.