Every year, colleges and universities across the country are gear up to connect graduating seniors with employers looking for entry-level employees. But what about those workers who didn’t follow a traditional path to employment? Do college job fairs promote age discrimination?

In this blog post I will explain how the Age Discrimination in Employment Act (ADEA) and the protections available to older workers. I will review Villarreal v R.J. Reynolds, 839 F.3d 958 (2016), and a potential employee’s options and obligations in pursuing an age discrimination claim. I will also discuss how college job fairs and social media ads targeting college grads are being called out as promoting age discrimination.

Age Discrimination in Employment Act Protects Older Workers

The federal Age Discrimination in Employment Act (ADEA) is designed to prevent discrimination against older workers. It prohibits employers from:

1. Failing to hire or firing someone, or discriminating against him or her in terms of employment because of age
2. Segregating or classifying an employee in a way that adversely affects his or her status as an employee because of age

Unlike other forms of workplace discrimination, the ADEA doesn’t automatically apply to all workers. To have a claim of age discrimination, an employee or potential worker must be at least 40 years old. It other words, it is not illegal to discriminate against a worker because he or she is too young, only too old.

An Aging Workforce Raises Hiring Discrimination Issues

The average worker is getting older. More people age 65 and over are staying on the job — 18.8% in 2016compared to 12.8% in 2000. For those older adults without stable employment, that can often create fear of age discrimination. The EEOC found that in 2016, 65% of older workers believed their age was an obstacle to new employment. The agency received 20,857 claims of age discrimination that year, and that number is likely to increase as the average age of workers continues to rise.

College Job Fairs and Targeted Social Media Ads Raise Age Discrimination Concerns

The Equal Employment Opportunity Commission and other civil rights advocates have begun questioning whether the many common employer practices cross the line into age discrimination. Recruitment efforts like college job fairs and targeted social media campaigns restrict access to job postings and raise questions of access and discriminatory employment practices.

Companies coordinate with universities to hold meet and greets and conduct interviews that only their students can attend. Facebook allows employers to pay for “sponsored posts” that target particular demographics, limiting people who will see the post to, for example ages 18-24. But is that illegal age discrimination? The colleges and Facebook of course say it isn’t. After all, there is nothing prohibiting older adults from attending college. Just because a sponsored post or Facebook ad is targeted doesn’t mean it can’t be shared with older workers. But is that enough to defeat an age discrimination claim?

Villarreal v R.J. Reynolds and the Disparate Impact theory of Age Discrimination

There are two ways for potential plaintiffs to claim age discrimination happened:

1. Disparate treatment says the plaintiff him or herself was treated differently because of his or her age
2. Disparate impact says that an employer’s conduct indirectly affected an employee’s status.

Claims against college job fairs and social media campaigns generally fall in the second category because they are based on a theory that the older person lacked access to the same jobs. But in Villarreal v R.J. Reynolds, the Eleventh Circuit Court of Appeals said that only current and former employees could use a disparate impact theory of age discrimination.

Richard Villarreal applied to work as a territory manager at R.J. Reynolds, through its placement contractor. He was 49 at the time. The placement description targeted a candidate “2-3 years out of college” who “adjusts easily to changes”. The contractor was warned to “stay away from” applicants with 8-10 years in sales. Villarreal said that these criteria caused him to miss out on the job opportunity, and the 5 other times he applied to the company. His attorneys argued that the placement description had a disparate impact on older workers who didn’t have access to the jobs.

The distinction between who can claim disparate treatment and disparate impact came from the statute itself. In another section, the ADEA applies to conduct that would affect a person’s “status as an employee or as an applicant for employment”. But when it comes to disparate impact, the law only applies to conduct “adversely affect[ing] his status as an employee.” According to the Court of Appeals, a potential hire doesn’t have a status as an employee, so Mr. Villareal could not sue under a disparate impact theory.

The U.S. Supreme Court denied a request to review the decision. That means that potential workers claiming that recruitment efforts are illegal age discrimination will have to demonstrate disparate treatment, not just a disparate impact. For college job fairs, that will require a showing that an older potential worker was turned away or refused consideration, rather than simply showing a statistical probability that the tool recruits younger workers. The question of age-restricted social media posts could be stronger, but whether future plaintiffs will be able to demonstrate disparate treatment by social media companies or recruiters remains to be seen.

At Eisenberg & Baum, LLP, our employment discrimination attorneys we understand the realities of age discrimination facing older workers. When more senior job-seekers are passed over from jobs, we can help them investigate the circumstances, protect their interests, and file complaints with the EEOC or in federal court. Contact Eisenberg & Baum, LLP, today for a free consultation.