For decades, federal law has protected job seekers over the age of 40 from age discrimination. But in a major blow to older applicants on Wednesday, the 7th U.S. Circuit Court of Public Appeals ruled that the Age Discrimination in Employment Act (ADEA) only protects current employees and does not cover external applicants.
Attorney Dale Kleber, who was 58 at the time he applied for the job, claimed in a lawsuit that medical supply company CareFusion passed him over for a senior position in its law department. Instead, the company hired a less experienced 29-year-old candidate.
CareFusion’s job description required applicants to have between three to seven years of relevant legal experience but no more than seven years; Kebler had more than seven years. Represented by AARP, Kleber brought suit under Section 4(a)(2) of the ADEA, arguing that the company’s seven-year experience cap discriminates against older workers. In an 8-4 decision, the majority contended that the statute was meant to protect employees within the company from being denied employment opportunities due to age, not applicants seeking employment.
“We strongly disagree with the decision and find it very disheartening that the Court interpreted a civil rights law so narrowly, despite the statutory language and the great weight of Supreme Court precedent,” says Dara Smith, a senior attorney for AARP Foundation.
Wednesday’s ruling comes at a time when older workers are delaying retirement because of longer life expectancy, higher education and changes to Social Security benefits and employee retirement plans. Roughly 40% of people ages 55 and older were working or actively looking for work in 2014, according the most recent U.S. Bureau of Labor Statistics report. That number is expected to increase through 2024, with particularly rapid growth among those ages 65 and older.
Nevertheless, many older U.S. workers are pushed out of the labor force before they choose to retire, leading to “irreversible financial damage,” according to an analysis by ProPublica and the Urban Institute. Coupled with the recent ruling, this creates a vicious cycle for older American workers, who already face longer bouts of unemployment than younger workers.
“Over half of older workers do not leave their job by choice. Now this law makes it easier for employers to discriminate during the hiring process, meaning it’s almost impossible to even enter the class of ADEA protection that kicks in at 40,” says Ashton Applewhite, an ageism activist and the author of “This Chair Rocks: Manifesto Against Ageism.”
While the professional costs of ageism are harrowing, age discrimination exerts the biggest toll in the economic realm. “These are people with 30 more years to live,” says Applewhite. “Forget about saving―many still have kids, bills to pay, mortgages to meet and they’re asking, ‘If we can’t support ourselves then who will support us?’”
Though age bias is prevalent across all industries, it is more pervasive in certain sectors, such as tech. In a wide-ranging annual survey of venture-backed tech founders, more than a quarter reported that age bias runs rampant, starting as early as age 36.
Much of the age burden is shouldered by women and minorities. One study found that women stop getting promoted into managerial positions at the same rate as men once they hit their early 30s, while a 2018 report from the Equal Employment Opportunity Commission saw increases in reports of age discrimination filed by blacks and Asians.
These findings are unfortunate, given the wide body of research demonstrating the value of a mixed-age workforce: enhanced team performance, lower employee turnover and higher productivity, to name just a few.
Policymakers have historically treated the ADEA as a basic civil rights guarantee, akin to laws barring discrimination on the basis of sex or race. But in recent years, courts have rolled back the statute’s protections and limited its scope.
The appellate court’s latest decree, says Applewhite, is an “arbitrary and cruel ruling that ignores the larger intent of the law.” What’s most ironic, she notes, is that the ruling punishes workers for being highly qualified.
“The workplace is so against experience that it has become a liability,” says Applewhite. “Basically, this thing you spent your entire life getting really good at now disqualifies you from getting a job.”