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Ninth Circuit Says Asking Potential Employees for their Date of Birth on a Job Application May be Age Discrimination – Las Vegas Employment Law Attorney Andre Lagomarsino

Workers in the service and entertainment industries are screaming hallelujah over a recent holding by the U.S. District Court for the Southern District of California that asking a potential employee for their date of birth on a job application may be age discrimination. Ernst v. Bank of America, No. 12-CV-1255 (S.D. Cal. Oct. 30, 2012).

Bank of America (BOA) contacted Gary Ernst about an opening for a financial advisor. When Ernst expressed interest, BOA sent him an employment application package. Part of the employment application package inquired about Ernst’s age, but did not include a disclaimer concerning the requirements of the Age Discrimination in Employment Act (ADEA).

Ernst included his birth date and sent the completed employment application to BOA. After an interview where Ernst experienced hostility from the BOA interviewer, BOA informed Ernst they were hiring candidates who were a “better fit.” When BOA refused to tell Ernst why he was not hired, Ernst sued BOA claiming he was not hired as a financial advisor because of his age. That all the candidates BOA hired for the financial advisor positions were “significantly younger with inferior qualifications,” and as such BOA had violated the ADEA and the California Fair Employment and Housing Act (CFEHA). Ernst’s complaint included class allegations for four different classes of applicants over the age of 40: 1) those not hired in violation of the ADEA, 2) those not hired as a financial advisor in violation of the ADEA, 3) those not hired in violation of the CFEHA, and 4) those not hired as a financial advisor in violation of CFEHA. Ernst also filed complaints with the EEOC and the California Department of Fair Employment and Housing (CDFEH). The complaint requested relief for disparate treatment and disparate impact.

The ADEA forbids employment discrimination against anyone at least 40 years of age. The CFEHA provides protection from harassment or discrimination in employment for anyone at least 40 years of age.

BOA argued the case should be dismissed because Ernst had not exhausted his disparate impact remedy with the EEOC, which was a prerequisite federal subject matter jurisdiction. The District Court ruled against BOA and held that “the facially neutral requirement of providing the birth date leads to discrimination against older applicants” was sufficient to state a claim of disparate impact.

This decision makes employers aware that any employment application requesting a birth date should also include an ADEA disclaimer and make the response optional.

This commentary is for educational purposes. If you would like to be represented by an attorney in the Las Vegas law office of Lagomarsino Law, contact our office for a free confidential case review and receive a response within 24 hours. Call Toll Free 866-414-0400.