I can be forgiven if I’m a little pissed off right now. The Seventh Circuit Court of Appeals decided a few days ago that it’s okay for employers to discriminate against me.
As I explained in my June 9 blog post, a man named Dale Kleber sued CareFusion Corp. for discriminatory hiring practices in violation of the Age Discrimination in Employment Act (ADEA). A three-judge panel of the Seventh Circuit found that CareFusion violated the Act when it published a job description seeking an in-house attorney “with no more than 7 years’ relevant legal experience.” Kleber claimed that was really code for younger candidates, in light of the fact the company hired a 29-year-old instead of him.
The appellate panel agreed with Kleber, but for those unfamiliar with federal appellate procedures, often when one party loses in federal court, they can request what’s called en banc review by the full 12-member court. If it’s granted, they can convince the court to reverse the panel’s decision.
That’s what happened here, when the 12 judges who sit on the Seventh Circuit (who, it should be noted, are all older people who already have jobs) sided with CareFusion 8-4 and said it’s perfectly legal for an employer to set experience caps in job solicitations, even if the result is that this shuts out older applicants with more experience.
It should be pointed out that, among other things, ADEA is supposed to prohibit hiring practices that discriminate based on age. (For purposes of the law and purposes of this blog post, “older person” is defined as anyone over age 40.)
The upshot of the court’s ruling is that it’s illegal for an employer to run a job ad that says this:
Seeking applicants under age 40
but it's not illegal to say this:
Seeking applicants with no more than 10 years of experience
What’s more, this only affects older applicants who don’t already work for the employer. If they work for the employer, the court said, this wouldn’t be allowed. So, if you have a job already you’re protected by ADEA, but if you need a job, you’re not.
There’s a legal canon that holds that the plain language of statutes should not be interpreted in a way that produces an absurd result. To me, and I suppose to the four dissenters on the court, this conclusion does exactly that. Employers that want to age discriminate can do an end-run around the purpose of ADEA by wording their job postings in a particular way, and I’m sure this decision will result in more such job descriptions.
What I want to know is where is the outcry from the social justice people? Where are the protests? I don’t expect an outcry from conservatives, because conservatives rarely acknowledge any kind of workplace discrimination at all. They also generally support corporate freedom and minimal business regulation. But I expect better of liberals especially when they are always talking about gender inequity and anti-Muslim, anti-gay/transgender discrimination. Maybe if Dale Kleber donned a hijab, he’d get a little more love?
Age discrimination seems to be one area where the left and the right are in perfect harmony. I feel like I’m just as likely to be age-discriminated against by a liberal as a conservative.
Lest anyone think this is an “old white guy’s” problem, older women often find they experience more job discrimination due to their age than they did due to their gender as younger women.
I can’t even count the job postings that claim to seek “new graduates” or “recent graduates”, also legally sanctioned code for age discrimination.
This ruling has barely been reported on in the general media. It’s just not on the radar.
When you consider that older applicants who are denied jobs are likely to have to rely on government programs like disability, SNAP, or Medicaid in order to survive, this is poor social policy.
The Seventh Circuit majority left the issue with Congress to fix. Maybe some of these newly sworn and progressive members of Congress can revisit ADEA and amend it to avoid results like this. But somehow I just don’t see it happening.