This Note discusses the unresolved issue of whether the Age Discrimination in Employment Act (ADEA) protects older job applicants from disparate impact discrimination, arguing that they should, in fact, be covered. This Note starts with an examination of the disparate impact framework and how arbitrary employment qualifications can operate indirectly to restrict the employment of older workers. It then goes into a statutory analysis of the pertinent sections of the ADEA and considers several different statutory interpretation methods. This Note will argue that the interpretation of the statute should align with its underlying purpose, which is to prohibit employers from discriminating against older people and to help older workers who have been displaced from work to regain employment.
This Note then summarizes recent case law interpreting the issue, discussing the most recent developments in differing circuits. Both the Seventh and Eleventh Circuits have now effectively held that older job applicants do not have an available disparate impact claim under the ADEA. This Note argues for a different interpretation of the ADEA that would afford older job applicants the same protections as other protected groups who face similar barriers in employment.
This Note suggests several remedial measures that may address this problem for the aging workforce. These recommendations include that advocates bring cases that enable other circuits to weigh in on this issue and create a circuit split to bring it to the Supreme Court so that the highest court can clarify the ambiguous language of the ADEA. Alternatively, a congressional amendment to the ADEA to expressly include applicants in the language of the statute would eliminate any ambiguity with respect to discrimination against older applicants for employment.
Viscomi, Lindsey A., "“Over-the-Hill” Yet Still Fighting Uphill Battles to Find Jobs: The Plight of Older Job Applicants Under the ADEA" (2020). Connecticut Law Review. 435.