Experience Caps In a Job Posting Could Be Age Discrimination

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Jun 4, 2018

Law firms, among other businesses, are notorious for seeking non-partner candidates with experience within a range of years: “1-4 years,” “5-8 years,” “with about 10 years of experience.”

Could placing a cap on the number of years of experience be part of a code for “we don’t want to hire old people”?

A recent federal court decision out of Texas suggests it could be.

In that case, a company posted for an in-house counsel job. The posted job advertisement stated that “[t]he right candidate will have strong academic and employment credentials… with about 10 years of experience,” and that big firm and in-house counsel experience were “preferred.”

As you may have guessed, the plaintiff is over 40 and the company did not hire him for the position.

The plaintiff further alleged that a company representative told him that the company did not want someone with so much experience that they would be inflexible. Couple that with a job posting seeking someone “with about 10 years of experience,” and the plaintiff alleged that this was simply code for the plaintiff being too old.

But was it?

The company argued that the statement only referred to years of experience in practicing law and not age. That makes sense to me. It’s at least as plausible as the plaintiff’s “code” argument.

But, here’s what the court had to say:

In the instant case, a reasonable juror could find [the] comment about experience and inflexibility to be indicative of age discrimination. Also… the parties sharply disagree about [the company’s] reasons for not hiring [the plaintiff], which could lead a jury to find that [the company’s] decision was actually motivated by discriminatory animus… Ultimately, though [the plaintiff’s] evidence is “barely sufficient,” the Court “cannot conclude that no reasonable jury could return a verdict of age discrimination,” and the issue is more appropriate for resolution “under the heat of trial and the bright light of cross-examination.”

Translation: An advertisement seeking a candidate with a certain number of years of experience isn’t automatically age discrimination.

(Lawyers like to say “per se” instead of “automatically.” No one else likes to say “per se.” That’s why people hate lawyers, among other reasons.)

However, if the decision-makers make comments that in any way suggest that age may be part of the hiring criteria, then congratulations! You get to experience a jury trial!

This article originally appeared on The Employer Handbook blog.