Getting Ahead of the Age Game

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from making employment decisions based on an employee’s age.[1] However, uncertainty remains as to whether applicants can pursue age discrimination claims based on disparate impact in the hiring process. Disparate impact is a type of claim that allows an applicant or employee to sue based on an employer’s practice that directly, but unintentionally, harms individuals in a protected class. The Eleventh Circuit Court of Appeals (Eleventh Circuit), whose precedent governs federal employments claims in Georgia, has ruled that such claims are not available under the ADEA.[2]

Despite the Eleventh Circuit’s ruling, keen employers will ensure their hiring and recruitment policies do not indirectly exclude those individuals covered by the ADEA. The United States is an ageing nation.  The U.S. Census Bureau predicts that by 2050 the country’s population aged 65 and over will be 83.7 million, almost double its estimated population of 43.1 million in 2012.”[3]  This increase in population will likely correspond with an increase in lobbying power for individuals aged 65 and over. Therefore, it can reasonably be predicted that protections for older workers will only increase over the coming years.

Employers looking to get ahead of the curve on the age game should consider implementing the following policies:

When Recruiting Talent:

  • Post job openings on several forums, including non-electronic media. Especially avoid advertising only on social media or using targeted ads that select only narrow groups to see the ad.
  • Avoid recruiting only on college campuses. (Employers have already experienced lawsuits based on this practice).
  • Be careful with word choice in job postings. For example, instead of saying “recent graduate”, simply describe what skills and education is needed to succeed in the position

When Drafting Application Forms:

  • Remove or reword questions that directly or indirectly ask about age. For example, consider removing graduation dates from the application. Simply ask the candidate whether they have completed a certain level of education.
  • Give more than one way to apply. Avoid only accepting applications online. Only accepting applications online may exclude those are accustomed to a more traditional application process.[4]

In addition to helping companies avoid costly litigation, updating recruitment and application processes provides companies with a more well-rounded pool of talent. Thus, increasing the chances you’ll find the perfect candidate for the job. If you’re concerned that your company’s recruitment policies may be unintentionally excluding older candidates, contact us for an audit or assessment of your company’s current policies and procedures.

~ Author: Holly McDaniel, 2018 ELS Extern, Emory University School of Law, 3rd Year Law Student

[1] 29 U.S.C. § 623(a).

[2] Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958 (11th Cir. 2016).

[3] U.S. Dep’t. of Commerce, U.S. Census Bureau, An Aging Nation: The Older Population in the United States (2014)

[4] Bridget Miller, Avoiding Age Discrimination in the Recruiting Process, HR Daily Advisor (Feb.6, 2018), https://hrdailyadvisor.blr.com/2018/02/06/avoiding-age-discrimination-recruiting-process/