Excerpted from Virginia Employment Law Letter and written by attorneys at the law firms of DiMuroGinsberg, P.C.
Your company may be receiving an increased number of resumes or job applications from soon-to-be graduates and those interested in summer employment. There's a lot of focus these days 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). As an employer, you 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.
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 Act 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.
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, you may lawfully post advertisements that express a preference for older individuals.
As an employer, however, you should know that some states, including Minnesota and New Jersey, do have state laws prohibiting discrimination against younger employees.
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 you're 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.
Copyright 2008 M. Lee Smith Publishers LLC. VIRGINIA EMPLOYMENT LAW LETTER . VIRGINIA EMPLOYMENT LAW LETTER is a monthly publication provided as an educational service only to assist lay persons in recognizing potential problems in their labor and employment matters. It is not meant to be construed as legal advice. Readers in need of legal assistance should retain the services of competent counsel.
