About the Article

As life expectancy increases, the expected retirement age also rises. More Americans are working past the traditional retirement age, with almost 19% of people sixty-five or older working at least part-time. However, with a focus on technological advancement, companies are increasingly giving preference to younger applicants, or “digital natives,” both at entry level and management positions. The age and experience that was once seen as a plus for job candidates is now working against elderly Americans.

Currently, the Age Discrimination in Employment Act (“ADEA”) bars employers from discriminating against employees because of age. There is a developing split amongst circuit courts, however, as to whether this protection extends to include job applicants. In 2016, the Eleventh Circuit ruled that the protections under the ADEA are limited to employees and thus applicants are unable to bring disparate impact claims against prospective employers. In contrast, the Northern District of California and the Seventh Circuit have ruled in favor of applicants, holding that the protections provided by the ADEA extend to job applicants. The Seventh Circuit later vacated this opinion and recently reheard the case en banc.

This Note surveys the jurisdictional split on whether job applicants are protected under the ADEA. The Note recommends that the Seventh Circuit maintain its original ruling in agreement with the ruling of the Northern District of California, which allows age discrimination laws to protect both employees and applicants. Protecting applicants as well as employees would further congressional intent and promote justice by treating potential employees equally, regardless of age.

About the Author

William Hrabe is an Articles Editor 2018-2019, Member 2017-2018, for The Elder Law Journal; J.D. 2019, University of Illinois, Urbana-Champaign; B.A. of Political Science and Individual Plan of Study–Disability Studies, University of Illinois, Urbana-Champaign.

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The Elder Law Journal

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