Saturday, January 26, 2019

Are Older Job Applicants Protected from Age Discrimination? No


Here is a trick that employers use to discriminate against older people (age 40 and up)-- they phrase the job description something like this: “The ideal candidate will have 7-10 years of experience.” Now, that’s not age discrimination per se—but you get the point.
Dale Kleber was 58 years old when he applied for a general counsel job at Illinois-based CareFusion in 2014. He had practiced law in this professional area for many years. He was never even contacted (a general counsel is essentially the top in-house lawyer for a corporation). Put another way: He wasn’t qualified because he had too much job experience, expressed in years (which correlates with age).
The job was titled: “Senior Counsel, Procedural Solutions.” The company eventually hired a 29-year-old for the position as according to the complaint.
The full appellate court for the Seventh Circuit decided the case (that’s unusual—usually these courts assign cases in panels of three). The entire argument was over the exact phrasing in the age discrimination law.
The majority said that when the law says “any individual” is protected, they mean any “employee.”
But U.S. Circuit Judge Frank H. Easterbrook disagreed. He said that “normally one word used in adjacent paragraphs means a single thing.” He continued: “The majority does not explain why the statute would use ‘individual’ in dramatically different ways within the space of a few words.”
My advice for older workers who face this all-too-common barrier: If you need to sue, look at state discrimination laws.
But even that can pose barriers.
Look at how Illinois’ employment discrimination law knocks Mr. Kleber out of the box:
(A) Employee. (1) "Employee" includes: (a) Any individual performing services for                  
remuneration within this State for an employer; (b) An apprentice; (c) An applicant for any apprenticeship.
Mr. Kleber didn’t apply for an apprenticeship.
Age discrimination is a problem. It is not being addressed adequately.


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