Have you ever seen a job posting for a position where the employer only wanted applicants with little or no experience? Companies that look for applicants with little or no experience do so, in some instances, because they believe that applicants with relatively little experience will command a lower salary than applicants with more experience. Because experience usually comes with age, a company’s practice of hiring applicants with little or no experience has a disparate impact on older workers. And this type of disparate impact could be unlawful age discrimination.
“Disparate impact” cases involve employment practices that, on their face, do not discriminate on the basis of a protected category but that, nevertheless, operate in a way that negatively affects a protected group. In Maine, if a company engages in employment practices that have a large enough disparate impact on a protected group, such as older workers, the company can be liable for discrimination if it cannot prove that the practice is “job related and consistent with business necessity.”
In the context of hiring practices, this “job related and consistent with business necessity” standard requires the company to prove that the criteria it uses to select job applicants for hire meaningfully distinguish between well qualified and poorly qualified applicants. If the company can meet this “job related and consistent with business necessity” standard, it could still be liable for discrimination if the applicant could show that there were alternate hiring criteria that would have served the company’s needs just as well but had less disparate impact against the protected group.
When a company seeks only applicants with little or no experience, this minimal experience requirement will likely have a disparate impact on older workers. In which case, the company would be liable for age discrimination under Maine law unless it could show that applicants with minimal experience would be better suited for the job than applicants with more experience. This could be difficult for the company to prove if the reason for the minimal experience requirement was just that the company assumed it would have to pay a more experienced applicant a higher salary than a less experienced applicant.
A class action case against the accounting firm PriceWaterhouseCoopers (PWC) is an example of such a disparate impact case. In this case, the plaintiffs allege that PWC hires new accountants almost entirely right out of college. These new college graduates have little or no experience and, as you might expect, are far younger than other accountants who PWC does not consider for these jobs.
If you are an older worker and you encounter job postings where the employer seeks applicants only with a minimum level of experience, contact the Maine Employee Rights Group. The company that posted the job could be violating the law in such a way that not only harms you but other older workers like you.