Ever since a U.S. Supreme Court ruling in 2005, older workers and applicants have been able to prevail in age discrimination suits if they can show that an employer’s policy or hiring standard has a so-called “disparate impact” on those over 40 years old.
That’s why employers need to be proactive and analyze whether a policy may inadvertently impact older workers in a negative way.
For example, a policy that somehow makes open positions available to current employees before retirees have a chance to apply may have a disparate impact on older workers. When it comes to disparate treatment, it isn’t the employer’s intent that counts, but the effect.
Recent case: Mack Butts retired after working as a machinist. However, he wanted to get back in the work force and applied for open positions through his union.
Union members could retire at any age and collect a pension based on their years of service.
When Butts found out one employer had a hiring policy favoring current working union members over retired ones, he sued, alleging age discrimination. He claimed the preference policy, even if it didn’t intend to discriminate based on age, had a disparate impact on older people like himself.
The 6th Circuit Court of Appeals dismissed the case, but only because Butts didn’t bring in statistical evidence to show the disparate impact of the non-retired preference. (Butts v. McCullough, et al., No. 05-6337, 6th Cir., 2007)