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Can Employers Discriminate Against Younger Workers?

by Hillary J. Collyer

Given the current economic slump, there is a particularly high rate of unemployment among younger workers. Accordingly, employers may be receiving an increased number of resumes or job applications from recent graduates who are still looking for their first job out of college. Also, in recent years there’s been a lot of focus on the arrival of the Millennials, or Generation Y, into the workforce.

While they bring many positive attributes to the workforce (e.g., they’re technologically savvy, confident, and have high expectations), there are negative traits associated with the group as well (e.g., they’re overindulged, impatient, and self-absorbed). An employer might wonder what the consequences are for favoring older applicants or employees over younger ones.

The Age Discrimination in Employment Act (ADEA) makes it unlawful for you to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” It’s important to note, however, that only workers who are at least 40 years old are allowed to file a claim under the ADEA.

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Supreme Court’s Cline decision
In the 2004 decision General Dynamics Land Systems, Inc. v. Cline, the U.S. Supreme Court settled a conflict among the lower courts over the viability of so-called “reverse age discrimination” claims under the ADEA. Reverse age discrimination involves claims by younger employees who allege they have been discriminated against because of their youth.

In the Cline decision, the Supreme Court held that statutorily protected workers older than 40 may not file an ADEA claim alleging that their employer discriminated against them in favor of older employees. The Court observed that “if Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under forty.”

The Court distinguished age discrimination from other forms of discrimination such as race and sex discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race and sex. Although the original purpose of the Title VII was to protect racial minorities and women, it has been interpreted to include all race discrimination claims, whether asserted by racial minorities or whites, as well as all sex discrimination claims, whether made by women or men. Not so with age discrimination claims.

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EEOC guidance
In the wake of the Cline decision, the Equal Employment Opportunity Commission (EEOC) issued a new rule in July 2007, which specifically addresses reverse age discrimination and provides that employers aren’t liable under the ADEA when they prefer older workers over younger ones.

Furthermore, the new ADEA rule provides some guidance to employers in regard to “help wanted” postings and advertisements for positions. While a help-wanted notice can’t contain terms and phrases that limit or deter the employment of older employees, businesses may lawfully post advertisements that express a preference for older individuals.

Employers, however, should be advised that although federal law might not protect younger workers, some states, for instance, Michigan, Minnesota, New Jersey, and Oregon, have state laws which prohibit discrimination against younger employees.

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Bottom line
Even though it’s not unlawful to discriminate against younger workers under federal or most state laws, it’s probably not a good employment practice to do so. If an employer is going to prefer older workers to younger ones, there should be a valid, articulated business reason (e.g., work experience) rather than mere age for doing so.

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