Labor and Employment Law

Age Discrimination Against Older Job Applicants

 The United States Government Accountability Office (GAO) addressed age discrimination against older job applicants in a 2012 report titled: “Unemployed Older Workers: Many Experience Challenges Regaining Employment and Face Reduced Retirement Security.” Almost all of the workforce professionals interviewed by the GAO said that some employers are reluctant to hire older workers.

The GAO’s report points out that only 31 percent of workers between 55 and 64 who were displaced between 2007 and 2009 regained full-time employment by January of 2010. The GAO found that job seekers over the age of 55 consistently have experienced longer durations of unemployment than younger workers. Older workers who participated in focus group sessions conducted by the GAO felt that their primary obstacle to reemployment was employers’ reluctance to hire older workers.

Another study addressing age discrimination against older job applicants is a study published in 2013 in the Journal of Applied Social Psychology, which is titled: “Age Discrimination in the Evaluation of Job Applicants.” That study found that as a job applicant’s age increases beyond 48 years, the likelihood that the applicant will be hired decreases.

The Age Discrimination in Employment Act (ADEA) protects job applicants who are 40 or older and makes it unlawful to not hire applicants because of their age. The ADEA applies to employers who have at least 20 employees.

If an older applicant for a position is clearly more qualified than a substantially younger applicant who was hired for the position, that is evidence of age discrimination. See Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006) [an enhanced version of this opinion is available to subscribers], and cases cited therein.

When a job applicant is not hired for a position, the job applicant might not know who was hired for the position. However, if an older applicant for a position files a charge of discrimination with the Equal Employment Opportunity Commission, the employer usually will need to disclose who was hired for the position, why that person was hired, and what that person’s qualifications are. If the older applicant then submits evidence showing that he or she is clearly more qualified than a substantially younger person who was hired for the position, there will be increased pressure on the employer to settle the case.

When a substantially younger job applicant is hired for a position instead of an older applicant, the older applicant often has more experience than the substantially younger applicant. If an employer’s alleged reason for not hiring an older applicant is false, that is evidence of age discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (“Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. . . . Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt’”) [enhanced version].

In light of the ways age discrimination can be demonstrated, older job applicants should consider pursuing an age discrimination claim.

Ajay Choudhary is an attorney at Khemka & Choudhary, 8702 Westpark Drive, Houston, Texas 77063 / (281) 888-7074.

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