Workplace Labor Update - Does Experience Equal Age? – October 1998

The federal district court for the District of Columbia has recently issued a decision that demonstrates the dangers of advertising for a position requesting applicants with a certain number of years of experience. Koslow v. Epstein, Becker & Green, 77 F.E.P. Cases (BNA) 250 (D.D.C 1998). Steven Koslow was a 53-year-old attorney licensed to practice law in the District of Columbia. He graduated from law school in 1969. During the summer of 1994, Mr. Koslow applied for a position at the law firm of Epstein, Becker & Green, in response to an advertisement requesting applications for its health law anti-trust litigation practice from attorneys between two and six years out of law school. Mr. Koslow was not granted an interview with Epstein, Becker & Green, which hired a 29-year-old applicant who had 28 months of work experience. Mr. Koslow filed suit against Epstein, Becker & Green alleging that he had been discriminated against because of his age and alleging that the advertisement requesting applicants with a certain number of years of experience violated the Age Discrimination in Employment Act (ADEA). In a March 1998 decision, a federal district court for the District of Columbia, rejected Mr. Koslow's argument. Koslow v. Epstein, Becker & Green, 76 Fair Empl. Prac. (BNA) 1164 (D. D.C. 1998). The court noted that under the Supreme Court's decision in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), employers are allowed to base their employment decisions on factors other than age, even if those factors are correlated with age. The Supreme Court specifically held, because "an employee's age is analytically distinct from his years of service . . . an employer can take account of one while ignoring the other." Accordingly, the district court dismissed Mr. Koslow's lawsuit, finding that the practice of considering only applicants with a specific number of years of experience was acceptable and not subject to challenge. Three months later upon consideration of new evidence, the court reinstated Mr. Koslow's lawsuit allowing Mr. Koslow to proceed with discovery. The new evidence demonstrated that the law firm had in fact considered a number of candidates with significantly more than six years of experience, contrary to its previous defense that it did not hire Mr. Koslow because it considered only candidates with a limited number of years of experience. The court's new ruling did not modify its earlier decision that an employer may properly limit consideration for a position to applicants with a certain number of years of experience. What this decision does indicate, however, is that employers that routinely request applications from job candidates who have a certain amount experience should ensure that they do not give consideration to applicants who are outside the experience criteria requested. Failure to do so could potentially expose an employer to a lawsuit from an older applicant rejected because he or she had too many years of experience.