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.