Courtney Votes to Pass Bill Protecting Older Americans from Age Discrimination in the Hiring Process | Congressman Joe Courtney
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Courtney Votes to Pass Bill Protecting Older Americans from Age Discrimination in the Hiring Process

November 4, 2021

WASHINGTON, DC—Today, Congressman Joe Courtney (CT-02) voted to pass the Protect Older Job Applicants Act (H.R. 3992), a bill that would help prevent age discrimination against older Americans who are looking to change careers or enter the workforce. Although the Age Discrimination in Employment Act (ADEA) was written to protect both older employees and job applicants from disparate impact age discrimination, two federal court decisions have interpreted the ADEA to exclude older job applicants from the law's disparate impact coverage. The Supreme Court has thus far declined to review these adverse decisions, and at this point Congressional action is needed. H.R. 3992 would clarify that job applicants are protected under the ADEA, and can challenge discriminatory hiring practices that have a disparate impact on seniors and older Americans.

Rep. Courtney is a co-sponsor of the Project Older Job Applicants Act, and as a senior member of the House Education and Labor Committee he helped prepare it for House passage today when he voted to pass the bill out of Committee in September. The Project Older Job Applicants Act was introduced with bipartisan co-sponsors, and passed the House today with support from both sides of the aisle.

"There are thousands of Americans who are trying to re-tool their skillsets for new careers right now, or to re-enter the workforce, and we need to be asking ourselves how we can make it easier for them to join the economy and get that new opportunity," said Rep. Courtney. "We've got a lot of hard-working moms and dads in eastern Connecticut, lots of middle-aged and older Americans going after new opportunities, and none of them should be held back by age discrimination in the hiring process. Boxing people out of the workforce over something like their age isn't just wrongheaded—it's also a drag on our economy. The ADEA was clearly written to give older Americans an avenue of redress when they think they've been held back solely because of their age, and this bipartisan bill would simply clarify that that is in fact the case. Glad to pass this bill on behalf of seniors and older workers in eastern Connecticut, and glad we did it on a bipartisan basis."

More Information on the Protect Older Job Applicants Act

For nearly 50 years since enactment, the ADEA protected both older employees and job applicants from disparate impact age discrimination. Unlike disparate treatment claims, which involve an employer's intent to discriminate based on age, disparate impact claims involve employer policies and practices that appear to be neutral, but result in a disproportionate impact on older workers.

Two federal court decisions have interpreted the ADEA to exclude older job applicants from the law's disparate impact coverage, while still protecting employees. Despite the history of protecting older job applicants, and the opinion of the Equal Employment Opportunity Commission (EEOC) that the ADEA affords such protection, the Supreme Court has declined to review these adverse decisions. At this point, Congressional action is needed.

Forty-four percent of older applicants report being asked for age-related information when applying for a job, and three-fourths of workers age 45 and older blame age discrimination for their lack of confidence in finding a new job. Derogatory stereotypes about older workers' physical and cognitive health, personal ambition, and time flexibility are often embedded in hiring decisions made by managers.

The Problem: The 7th and 11th Circuit Courts of Appeals have held that the ADEA prevents older job applicants from pursuing disparate impact claims for age-based discrimination in hiring.

  • In 2016, the 11th Circuit held that the ADEA's disparate impact provision only covers employees, but not older job applicants (Villarreal v. R.J. Reynolds Tobacco Company).
  • In 2019, the 7th Circuit adopted the same restriction regarding job applicants in Kleber v. CareFusion Corporation.
  • Both decisions rejected decades of EEOC guidance that job applicants are covered by the ADEA, as well as the Supreme Court's interpretation of a parallel statute under Title VII of the Civil Rights Act of 1964.

The Solution: Protect Older Job Applicants Act clarifies that the Age Discrimination in Employment Act protects older job applicants.

  • H.R. 3992 clarifies that older "applicants for employment" are also protected from age discrimination under the ADEA's disparate impact provision.
  • The bill will directly restore protections for older job applicants in the 7th and 11th Circuits by reversing Villarreal and Kleber, as well as prevent other circuits from adopting similar interpretations of the ADEA.
  • H.R. 3992 aligns ADEA protections for job applicants with Title VII of the Civil Rights Act of 1964.
  • The Protect Older Job Applicants Act has drawn support from organizations representing the interests of seniors and older Americans, including the AARP and the National Council on Aging support this legislation

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