Can job applicants bring disparate impact claims under the ADEA?

Americans are living and working longer than in previous generations.  Over the last ten years, the over 45-year-old work force has grown dramatically, from 31.7% of the country’s workforce in 1996 to 39% in 2006 and 44.3% last year.  The percentage is expected to grow even larger, as the number of American workers over the age of 65 is projected to rise sharply.

At the same time, a recent study by the Federal Reserve Bank of San Francisco seems to confirm previous studies that show that older workers in general face significant discrimination in hiring, with older female workers facing even more age discrimination than their male counterparts.  Discrimination against older employees may stem from several misinformed worries employers have about hiring older employees, including an assumed lack of flexibility or unwillingness to embrace change, likelihood of leaving employment, and the prospect of longer absences due to sickness.

Older workers may especially face discrimination applying for or working in technology companies.  From 2008 to 2015, employees or applicants at Silicon Valley’s 150 largest tech companies filed 226 complaints of age discrimination, 28% more than racial bias complaints filed against those companies and 9% more than complaints based on gender bias.  While recruiting, tech companies often cloak their prejudice in a desire select employees that can present a youthful, progressive image to customers and investors and often worry that older workers may not be willing to work long hours or stay up-to-date with technical skills.  Whether through deliberate discrimination or facially neutral recruiting tactics (such as hiring only recent graduates), these companies have established a younger workforce than other companies; whereas the median age for an American worker is 42, the median age at companies such as Apple, Google, and Facebook are 31, 30, and 29 respectively.

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