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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