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New Bill Prohibits Age Discrimination Against Job Applicants — Wait, Isn’t that Already Unlawful?

New Bill Prohibits Age Discrimination Against Job Applicants — Wait, Isn’t that Already Unlawful? Background Image

If you noticed headlines last week that the U.S. House of Representatives passed legislation prohibiting employer from discriminating against job applicants because of their age, you might have wondered: does that mean it’s currently permissible to do so? The answer is “yes and no,” which presents a good opportunity for a refresher on the difference between disparate treatment and disparate impact discrimination.

The proposed Protect Older Job Applicants Act of 2021, H.R. 3992 (“POJA”), is intended to clarify that outside job applicants can bring disparate impact claims under the Age Discrimination in Employment Act of 1967 (“ADEA”). Several courts have held that such claims cannot be brought by outside job applicants under the current wording of the ADEA. Disparate treatment claims, on the other hand, are already covered under the ADEA. The difference between disparate impact and disparage treatment in this context can be summarized as follows:

  • Disparate treatment arises when an individual is treated less favorably because of a protected characteristic (e.g., an employer has a policy not to hire anyone over the age of 40).
  • Disparate impact arises when a seemingly neutral policy or practice has a disproportionately negative effect on individuals with a protected characteristic. This can be harder to prove, but it also presents a greater risk for employers who might, through their policies, expose themselves to potential claims without realizing it (e.g., a disparate impact case could be built when an employer searches for applicants for a position exclusively at colleges and therefore has an applicant pool that is primarily young, which disadvantages older workers).

POJA is not yet law. It would need to be passed by the Senate and then signed by President Biden before coming into effect, and passage through the Senate appears to be unlikely for the time being.

But employers should remember that, despite some of the headlines, age discrimination claims can already be brought by any job applicants where there has been disparate treatment, and inside job applicants (i.e., existing employees applying for promotions or new positions) can also bring disparate impact claims. Disparate impact claims can also arise in the context of other types of discrimination, so awareness of the different types of claims and how they can arise is important in managing risk and avoiding pitfalls. Finally, employers should bear in mind that state laws may differ from the federal standards, so it’s important to keep up-to-date on the laws that apply to your particular workforce.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.