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Can a Job Rejection Be Age Discrimination?

4 ways you may be able to prove a case


If you’re an over-40 job hunter and not getting offers, you may be wondering if you’re being turned down due to your age. And, if so, whether that’s against the 50-year-old law, the Age Discrimination in Employment Act. One pending class-action suit against Pricewaterhouse Coopers and another against R.J. Reynolds Tobacco (that the Supreme Court may soon hear) make this concern especially timely.

There’s a good chance that age will hurt your job chances, especially if you’re in your 50s or older, based on a recent Federal Reserve Bank of San Francisco study. Researchers created realistic, but fictitious, resumés for young (aged 29 to 31), middle-aged (49 to 51), and older (64 to 66) job seekers and sent out more than 40,000 applications for over 13,000 low-skill positions in 12 cities. Older applicants, particularly older female applicants, were much less likely to be contacted for interviews — in some fields, as much as 47 percent less likely.

It isn’t easy to win a lawsuit proving that age was the reason you weren’t hired. But here are four ways you may be able to do it:

When a less-qualified younger person gets hired for the position you applied for  Here, you’d sue under what’s known as the McDonnell Douglas case. It’s one of the most traditional ways to prove age discrimination. The employer must produce a legitimate reason other than discrimination for hiring the younger person. For instance, if the job ad said the employer needed a master’s degree and the person hired had a bachelor’s, age is probably the reason you weren’t hired. But in most cases, you have no idea who was hired, making it difficult to prove age discrimination this way.

The suit against PriceWaterhouse Coopers alleges that it engaged in systemic discrimination against older applicants for accounting positions.

When the employer specifically does youthful recruiting  Most employers aren’t dumb enough to say they want younger employees, but many will only recruit through colleges. That Pricewaterhouse Coopers (PwC) age discrimination suit alleges exactly this.

The suit, brought by a 53-year-old accountant, alleges that PwC: engaged in systemic discrimination against older applicants for accounting positions; primarily hires entry-level accountants through campus recruiting; does not post entry-level accountant positions on its website; provides no ready mechanism for individuals no longer affiliated with a college to apply for these positions and that the company prides itself on maintaining a young workforce, focusing on attracting and maintaining Millennials and requiring partners to retire by 60. The suit accuses PwC of hiring a “stunningly low” number of people over 40 to maintain a youthful culture. PwC says the age-discrimination law does not apply to hiring decisions.

Some employers might be more subtle and say that they prefer applicants who went through a particular program only offered in college, and which was only recently available. In this type of discrimination case, even if the hiring practice seems age-neutral, it still may be illegal if it has a disparate impact on older applicants.

When the employer is looking for someone with minimal experience  Some companies and nonprofits advertise that they want applicants with a certain number of years of experience (a certain low number). If the ad says the position is for someone with two to five years of experience and you have 20, you probably have little chance of being hired.

This issue is the basis of the R.J. Reynolds case that the Supreme Court might take up. R.J. Reynolds had guidelines for recruiters to favor regional sales-job applicants who were only two to three years out of college. The recruiters were also told to avoid applicants with eight to 10 years of sales experience. According to an NPR piece by Ina Jaffe, only 19 people over 40 were hired out of about 1,000 who snagged the open positions at R.J. Reynolds.

When HR blows the whistle  Sometimes you get lucky and an HR person with a conscience decides to go public about an employer’s discriminatory hiring practices. His or her objection may be revealed in a whistleblower suit. Or perhaps they become know through documents leaked to AARP, the U.S. Equal Employment Opportunity Commission, a rejected applicant or an employment lawyer. This is rare, but it happens.

Age discrimination in hiring cases don’t always play out well legally, though. If you live in Alabama, Florida or Georgia, you may not be legally protected against age discrimination in hiring under the Age Discrimination in Employment Act. That’s because the 11th Circuit Court of Appeals, which only covers those three states, recently ruled in the R.J. Reynolds case that this law does not apply to job applicants there, only to “employees.”

That doesn’t mean that if you live in one of those states you can’t sue under your state law. Florida and Georgia laws against discrimination include age, and they include discrimination in hiring decisions. Alabama has no similar law, so employers there are legally allowed to discriminate based on age in hiring decisions unless and until the Supreme Court says otherwise.

Bipartisan legislation pending in Congress known as the Protecting Older Workers Against Discrimination Act would override a 2009 Supreme Court decision (known as the Gross case) saying that employees must prove that age was the sole or overriding factor in an adverse employment decision. The bill (sponsored by Senators Robert P. Casey Jr., Charles Grassley, Patrick Leahy and Susan Collins and endorsed by AARP) probably wouldn’t solve the problem created by the R.J. Reynolds case. Still, it would resolve an issue that makes age discrimination harder to prove than any other type of discrimination.

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