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THE ADEA AND NJLAD MAY AFFORD PROTECTION TO PROSPECTIVE EMPLOYEES FROM AGE BIASED RECRUITMENT PRACTICES

The federal Age Discrimination in Employment Act of 1967 (“ADEA”) and the New Jersey Law Against Discrimination (“NJLAD”) prohibit employers from discriminating against people because of their age. This includes a list of forbidden practices such as considering age when hiring and firing, compensation, assignment, transfer, promotion, use of company facilities, training, fringe benefits, pay, retirement plans, and disability leave, to name a few. While generally an employer cannot directly deny someone an opportunity to apply for a job because of their age – under the ADEA someone age 40 or over & under the NJLAD ages 18-70 (w/some exceptions) – it is currently unclear whether recruitment practices which discriminate against older applicants and deny them an equal opportunity to apply for jobs which they are well qualified are prohibited by the ADEA and the NJLAD.

The ADEA protections can be understood in two ways: Either, only “employees” are protected and anyone who is not a current employee does not have ADEA protection; or, “any individual” who is discriminated against by an employer based on their age is protected (even if they are not yet an employee). Initially, the Fourth Circuit in Villarreal v. R.J. Reynolds Tobacco Co., 839 F3d 958, 961 (11th Cir. 2016) upheld the district court’s dismissal of an ADEA suit claiming that Villareal was unfairly discriminated against by R.J. Reynolds and that his fully qualified job application was dismissed because R.J. Reynolds was looking for younger recruits only. Id. R.J. Reynolds had issued hiring guidelines “describing their ‘targeted candidate’ as someone ‘2-3 years out of college’ who ‘adjusts easily to change’” and “‘to stay away from’ applicants ‘in sales 8-10 years.’” Id. The court justified dismissing the claim because it construed the ADEA language (section 4(a)(2)) to protect only current employees from discrimination and not job applicants. Id. at 963. However, the dissent disagreed pointing out that the ADEA protects “any individual” from age discrimination and not just employees.

In February 2017, the Northern District Courtof California in Rabin v. PricewaterhouseCoopers, LLP, No. 16-cv-02276-JST, 2017 U.S. Dist. Lexis 23224 at *1 (N.D. Cal. Feb. 17, 2017) permitted an ADEA disparate-impact claim to proceed. Building on the Villareal dissent, the court in Rabin held that the ADEA protected “any individual” not just current employees, and therefore, practices which disparately impact people based on age are prohibited by the ADEA even if they are not yet employed. Id. at *17.

While discussion continues in the federal courts about whether the ADEA applies to “any individual” or only “employees;” an issue that may eventually reach the United States Supreme Court, it is important to note that state statutes prohibiting age discrimination contain varying language, and therefore, may apply differently. As far as New Jersey is concerned, given the liberality typically accorded the interpretation and application of the NJLAD, it may be fairly predicted that our state courts would likely bar biased recruitment practices.

Nowadays, students of all ages go to colleges and attend on-campus recruitment job fairs. In fact, many rely on the quality and quantity of employers recruiting at colleges when making decisions about which colleges or universities to attend. However, because of the recent court decisions, college recruitment practices which single out college attendees based on their age may be violating the ADEA and the NJLAD.

It must also be borne in mind that the protections afforded by ADEA or NJLAD are not always absolute and without qualification. For instance, an employer does not violate the ADEA or NJLAD if their actions are truly based on a legitimate business reasons, that is; a Bona Fide Occupational Qualification. Consequently, New Jersey employers targeting young college recruits should proceed with caution when using recruitment programs which disproportionately and adversely affect applicants because of their age.  To do this, employers must ensure they have a legitimate business reason for using age based recruitment practices on college campuses.

If you have been subject to unfair hiring practices call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. We at Mashel Law, located in Marlboro, New Jersey, are dedicated to protecting the rights of employees.