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The U.S. Supreme Court has declined to address a case that sought to challenge age discrimination for job applicants. The plaintiffs asked the Supreme Court to consider whether older workers can challenge hiring rules or procedures that discriminate against older applicants. The Court declined to hear the case which leaves intact the current law in Alabama – no disparate impact claims.

Before At-Will Employment

Most states, including Alabama, have at-will employment.  That means you can be fired for any reason, so long as it’s not a prohibited reason.  Prohibited reasons include firing because of race, religion, gender, and age.

Usually, the law prohibits intentional discrimination and policies that have the effect of excluding or hurting group based on their race, religion, gender, or age.  However, that only applies to employees.  If you are applying for a job, intentional discrimination is still prohibited.  For applicants though, policies that penalize them because of their age are not prohibited by law.

Policies That Punish Applicants

Purposeful exclusion of older workers is illegal. If you are over forty and during an interview someone tells you they don’t hire older workers, that is against the law.  If the company chose not to hire you because of your older age, you would have a claim against them.  However, the same is not true if the company has a policy that does the same thing.

The plaintiff in Kleber v. CareFusion Corporation an older worker applied for a job and lost it to a 29 year old.  The position was advertised as for someone with “3 to 7 years (no more than 7 years) of relevant” work.  The plaintiff was 58 and had many years of relevant work but did not qualify for the job because the 7 year limit excluded him.

Less Protection for Applicants

The fifty-eight year old man in Kleber lost his case.  The 7th Circuit Court of Appeals ruled that the Age Discrimination in Employment Act does not prohibit policies that exclude older job applicants. Had he already been an employee and sought a transfer, the result probably would have been different.  Until Congress changes the law, policies or that favor younger job applicants and punish older ones will continue.

Age Discrimination in Alabama

7th Circuit cases don’t apply in Alabama.  Alabama is in the 11th Circuit.  However, in 2016 the 11th Circuit had a similar case it also ruled that the law protects older workers, but not older applicants from policies and procedures.

Intentional discrimination known as “disparate treatment” is prohibited in Alabama, even for applicants.  However, only those already hired are protected from policies that treat older workers differently.  If you are not hired, not promoted, or fired because of your age, you still have a claim.  Contact a lawyer or the EEOC to preserve your rights.

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