A 58 year old experienced but unemployed attorney applied for a job as a Senior Counsel that required the ability to assume complex business projects. The job description said applicants must have at least 3 years but no more than 7 years of relevant legal experience. He had more than 7 years of experience and he was not hired. The job went to a 29-year-old applicant.
The lawyer sued under ADEA alleging the 7-year experience cap had a disparate impact on qualified applicants over the age of 40. The lower court dismissed the claim saying ADEA’s disparate impact provision does not cover job applicants.
This was reversed on appeal
Why This Is Important… Whether the ADEA disparate impact theory applies to applicants is unsettled. It does, however, apply under some state age discrimination laws like New York. A number of courts have said that recent graduate programs are not, alone, evidence of discriminatory treatment based on age. However, they are risky under a disparate impact theory. Employers should be cautious with hiring programs that might disparately favor younger applicants until the Supreme Court or Congress settles this open ADEA question.