Dive Brief:

• An unsuccessful candidate for a project management position was unable to show that an employer's decision to reject his job application was due to age bias or national origin bias, the 10th U.S. Circuit Court of Appeals ruled (Vazirabadi v. Denver Health and Hospital Authority, No. 18-1411 (10th Cir. Aug. 2, 2019)).
• The applicant filled out an online application that asked if he was over 40 (he replied "yes"), and also asked about language fluency; he entered "Farsi/Persian." He scored in the 25th percentile on an online competency evaluation and was categorized as not recommended for hire. He was also not ranked as a top candidate after a telephone interview.
• Although the applicant claimed his over-40 status was flagged by hidden metadata, he had no direct evidence of this or of any national origin bias, the court documents noted. There was also a legitimate, nondiscriminatory reason for the rejection; according to the employer, other candidates were more qualified and gave better interviews. For these reasons, the 10th Circuit affirmed a summary judgment ruling in favor of the employer.

Dive Insight:

Employees and job candidates are protected by various federal, state and local laws from discrimination on the basis of age, national origin, and a number of other characteristics.

If, as in this case, an automated screening tool is part of an employer's hiring process, the employer must either refrain from asking questions that aren't directly relevant to the job, or be able to show that the answers to those questions were not known to, or considered by, decision makers. Ironically, in this case, the test administrator claimed the age question was completely voluntary and included to help ensure its tests did not discriminate against any protected group.

Employers striving to create a diverse, inclusive workplace must be fully committed to these efforts at all levels of the organization; a "check-the-box" mentality may not create real and lasting change. Oftentimes, even well-intentioned ideas fall short on execution, as with the case of an all-female spacewalk that had to be canceled because NASA didn't have enough appropriately sized spacesuits available.

Industry-specific inclusion problems persist, too. For example, a recent study revealed that tech employees' promotion opportunities drop off after the age of 36. The study authors recommended that employers review workforce data for signs of age bias in hiring, salaries, promotions, turnover and performance; and develop plans designed to facilitate an inclusive work environment.