A congressional committee recently passed the Protect Older Job Applicants Act of 2021, clarifying that external job applicants can bring disparate impact discrimination claims under the Age Discrimination in Employment Act (ADEA).
The House Committee on Education and Labor advanced the bill introduced by Rep. Sylvia R. Garcia, D-Texas, on July 15.
“People of all ages, but especially older applicants, must be protected from discriminatory practices and loopholes that hurt their chances to get a job, especially as we have seen that older American workers have disproportionately experienced long-term unemployment in the COVID economy,” Garcia said.
Committee Chairman Rep. Bobby Scott, D-Va., explained that the bill is complementary legislation to the Protecting Older Workers Against Discrimination Act (POWADA), passed by the U.S. House of Representatives in June. The earlier bill aimed to restore protections for workers age 40 and older by making it easier for people to sue for age discrimination even if age was not the sole cause of the challenged employment decision. If enacted, the law would undo a 2009 U.S. Supreme Court decision that held plaintiffs must show that age was the determinative reason for an adverse employment action.
“However, even with the reforms provided under POWADA, the ADEA still does not cover job applicants seeking relief from age discrimination,” Scott said. “The present wording of that bill that we passed applies only to employees. Our efforts to include job applicants—as I assume everybody thought it already did—was blocked by the House parliamentarian.”
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The ADEA does allow plaintiffs to seek legal recourse when an employer engages in disparate impact discrimination based on age—defined as when a neutral hiring policy adversely impacts older workers—but two federal circuit courts of appeal have recently ruled that some provisions of the ADEA’s antidiscrimination protections only applied to current employees, not external job applicants.
In 2016, the 11th Circuit held that the ADEA disparate impact statute only covers employees, but not older applicants (Villarreal v. R.J. Reynolds Tobacco Company), and in 2019, the 7th Circuit adopted the same interpretation in Kleber v. CareFusion Corporation. The U.S. Supreme Court declined to review the appellate court decisions.
“At the moment, employers—and especially those within the 7th and 11th Circuits— have a valid defense to claims under the ADEA where external job applicants allege they have been negatively impacted by neutral hiring practices on the basis of their age,” said Jonathan Gilman, an attorney in the Philadelphia office of Troutman Pepper. “If this legislation is enacted, it would mean that external candidates would be given the express right under federal law to bring these types of claims against their employers. In effect, employers would no longer be protected by the Kleber and Villareal decisions, as a way of escaping disparate impact claims brought by outside applicants under the ADEA.”
Gilman added that while employers may be able to successfully evade ADEA disparate impact claims from external applicants, state and local antidiscrimination laws may still protect those applicants. “In addition, the decisions of the 7th and 11th Circuits have no effect on ADEA disparate impact claims brought by internal applicants already employed within the company. Further, both internal and external job applicants remain protected under the disparate treatment sections of the ADEA.”
He recommended employers pay close attention to recruiting and hiring practices, and “carefully examine the language of job advertisements as well as recruiting methods—whether on social media platforms, in-person, or otherwise—to ensure that they are not just targeting certain age groups at the exclusion of others.”
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Committee Republicans voted against the bill, saying it would unnecessarily complicate employers’ recruitment and hiring practices. Rep. Virginia Foxx, R-N.C., the ranking member on the committee, said the legislation was “a classic example of a solution in search of a problem,” given that age discrimination in the workplace is already illegal.
The Protect Older Job Applicants Act is endorsed by the National Council on Aging and AARP.
“Older workers are valuable assets to their employers and the economy, and additional protections are needed as the country recovers from COVID-19,” said Bill Sweeney, senior vice president of government affairs for AARP. “Despite their value, 78 percent of older workers reported having seen or experienced age discrimination in the workplace in 2020, up from 61 percent in 2018.”
The COVID-19 pandemic also took a heavy toll on older workers who lost jobs and have since struggled to re-enter the workforce. “The pandemic has significantly diminished the job prospects and future retirement security of older workers,” Sweeney said. “Over half of job seekers ages 55 and older were long-term unemployed in June. The labor force participation rates for older women workers, along with their earning power and future retirement security, have been particularly hard-hit by COVID.”