Q&A: Limit on prior work experience in hiring may be age discrimination

Answer: You’re taking a big risk by doing so. You may want to reconsider your job requirements in light of a recent federal court decision. The U.S. Seventh Circuit Court of Appeals has become the first federal appellate court to rule that the Age Discrimination in Employment Act (ADEA) prohibits employers from hiring practices that disproportionately exclude older job applicants. Until now, ADEA claims have been limited to either intentional age discrimination, or employees (not applicants) claiming that an employer’s seemingly neutral policy has the effect of discriminating against older workers.
 
In the recent case, a 58-year-old lawyer applied for a senior in-house counsel position with the employer, in response to a job posting for applicants with “3 to 7 years (no more than 7 years) of relevant legal experience.” He wasn’t selected for an interview despite 30 years of legal and business experience. The employer hired a 29-year-old applicant for the job. The court found that the practice of excluding job applicants who exceed a maximum cap on work experience could constitute unlawful age discrimination. The case now returns to the trial court to address the employer’s defense that the hiring policy was based on reasonable factors other than age (Kleber v. CareFusion Corp., 7^th Cir, Apr 2018).
 
Although this issue hasn’t yet been addressed in the Ninth Circuit (which covers California, Idaho, Montana, Oregon, and Washington), this might be a good time to reexamine the business objectives behind any maximum work experience caps currently in place, and document the non-discriminatory reasons for such requirements.

For additional resources on the topic of age discrimination, see our free Legal Guide, Age Discrimination in Employment, which provides information about how to reduce the risk of an age discrimination lawsuit and comply with the ADEA.

If you have specific questions about how to adapt your job postings or if you want to talk further about reducing your risk of an age discrimination lawsuit, reach out to your Vigilant employment law attorney. Not a member? Vigilant members receive unlimited employment law advice services for a flat monthly fee. We’d love to talk to you about joining; reach out to us.