Becton Unit Court Win Sets Job Seeker Age Bias Precedent (2)

Bloomberg Law—Ben Penn

A Becton Dickinson subsidiary doesn’t have to face a lawsuit alleging it inadvertently violated federal law by rejecting an older applicant for an in-house lawyer job because he had too much experience, a federal appeals court said in a ruling that pares back anti-bias protections.

The 8-4 decision by the full U.S. Court of Appeals for the Seventh Circuit in Chicago changes course from an April opinion by a three-judge panel of the court and avoids creating a circuit split with the Eleventh Circuit over the scope of federal age discrimination law.

The Age Discrimination in Employment Act doesn’t protect older applicants from the unintended discriminatory effects of seemingly neutral employment policies, known as disparate impact, the Seventh Circuit majority said Jan. 23. It only protects existing employees from that type of discrimination, it said.

The ruling should bolster employers’ on-campus recruiting and other long-standing hiring practices that target younger job seekers.

The Seventh Circuit panel’s disagreement with the Atlanta-based Eleventh Circuit on the question had created the possibility that the U.S. Supreme Court would be called on to settle whether the ADEA’s ban on inadvertent bias requires employers to keep an eye out for how their hiring policies may unfairly affect external job applicants. But the full court’s decision may decrease the odds of the justices taking up the issue any time soon.

Ruling May Be Far-Reaching

The Seventh Circuit’s ruling benefits all businesses in Illinois, Indiana, and Wisconsin with 20 or more employees that seek to hire recent graduates or other younger, less experienced workers.

And together with the Eleventh Circuit’s ruling, which directly applies to businesses in Alabama, Florida, and Georgia, it may lend support to U.S. employers in other states as well.

“Discrimination against applicants is the age discrimination problem,” Samuel Estreicher, a law professor and director of the Center for Labor and Employment Law at New York University, told Bloomberg Law.

An employer’s potential to face litigation for firing older workers creates barriers at the hiring phase, making it the locus of age discrimination in the workplace, Estreicher said. “Proving discriminatory intent in hiring is very difficult,” he said. “Disparate impact analysis is essential to reach policies, like ‘no lateral hiring’ and experience limits, that heighten those barriers.”

Corporate titans Hewlett Packard and PricewaterhouseCoopers are among the employers that currently are defending allegations that their on-campus or similar recruiting methods inadvertently violate the rights of older workers. Alphabet’s Google Inc. was similarly accused of using hiring practices that tended to illegally screen out older, more seasoned workers, but a federal court dismissed those claims.

The ruling doesn’t affect a lawsuit alleging Facebook enables employers to target job ads in discriminatory ways, since the plaintiffs dropped their disparate impact claims, said Peter Romer-Friedman, an attorney representing the plaintiffs in that case. The lawsuit, which doesn’t name Facebook as a defendant, focuses on ADEA claims of intentional bias and publishing discriminatory advertisements, Romer-Friedman told Bloomberg Law. 

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