Can Someone Who Never Even Applied For A Job Sue For Age Discrimination?

That will be the novel issue before a Texas federal court in an interesting new case     

It appears that plaintiff, over 40, was seeking employment when he received an email from a employment agency looking to fill a spot for a client who needed a software engineer.  The client, however, did not want to hire anyone with more than 10 or 12 years’ experience, so the email stated that the client wanted someone to join “a pretty young, eager group” of workers with less than 5 years’ experience.

Coded Ageist Language

Readers know by now that I am always on the lookout for coded language used to disguise things like age discrimination (see below) – and this seems to fit the bill:  “pretty young, eager group.”

Happy, Kids, Boys, Small, Children

“For example, you do not call an employee ‘old’ or ‘ancient’ (I once had a case where the boss referred to another employee of the same age as the one he fired as “ancient”) since that is direct evidence of age discrimination. You stay away from calling an employee ‘old school,’ or ‘set in his ways,’ or ‘not a proper fit for the “new environment,’ or ‘lacking in energy.’  And, of yes, ‘Hang up your Superman Cape,’ and ‘get it together you f…. old people’ should also be avoided (although the latter remark can hardly be considered particularly well “coded”).”   The same with ‘looks old,’ ‘sounds old on the telephone,’ and is ‘like a bag of bones.’” (See my post from a week ago).

However … Plaintiff Never Even Applied For The Job!

Can plaintiff be considered an “applicant” under the ADEA if he never applied for the job?  Age cases are hard enough for older employees to prevail, and applicants have an even harder time.  But what if you never even applied?  Do you have a case?

Anyway, plaintiff feels that he was discriminated against because of his age and so he sued both the employment agency and the client.  His attorney is arguing that the email’s job description had a “chilling effect” on his client, and therefore made it futile for him to apply.

Boy, Tired, Hat, Sad, Ice, Snow, SmoothA chilling effect?”

The general counsel for the client had this interesting comment:  “We didn’t even know this person existed until the lawsuit was filed against [the employment agency].”  So how could the client have discriminated?

Takeaway:  This is one interesting case under the ADEA.  Anyone have any thoughts?

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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]