the situation
You have an online application process. When a candidate submits his
job application online, he automatically receives an email telling him
that his application has been submitted, that you will review his
background to determine if his qualifications meet with posting
requirements, and that you will contact him if it does. You don’t hire a
particular applicant and he claims that it was because of his
age-pointing to the automated email as evidence that you had knowledge
of his age (which would have been obvious based upon the information in
his resume). Is this enough to assert a claim under the ADEA?
the ruling
Probably not. The mere fact that such an automated email response is
sent would likely not be enough to show that an employer had knowledge
of a job applicant’s age. See Belyakov v. Henry M. Jackson Foundation, Case
No. DKC 13-3656 (February 9, 2016). The plaintiff in this case, Igor
Belyakov, submitted an online application for an open advisor position
with the Henry M. Jackson Foundation, a private, non-profit organization
focused on medical research and education.
When candidates applied for the position with the Foundation, they
were sent an automatic reply, telling them that the application had been
received and then the application was stored in an online database. The
employees charged with hiring the advisor were not specifically
notified when applications were received. The job at issue was posted on
November 7, 2012. Not long after the job was posted, an employee of the
Foundation strongly recommended a particular candidate for the job.
After this recommendation, the individuals responsible for selecting the
advisor screened the applications in the online database at that time
and scheduled interviews with several of them, along with the applicant
who had been recommended by a current employee.
After this initial screening, those in charge of hiring the advisor
did not go back to the online database. Unfortunately, Belyakov did not
submit his online application until mid-December, after this initial
screening had occurred. In January, the job was offered to another
candidate. After the candidate accepted the job in February, the
database was updated to reflect that the job had been filled.
After filing an EEOC charge, Belyakov brought a lawsuit against the
Foundation, claiming age discrimination and retaliation. The
Foundation moved to dismiss the lawsuit. The Foundation claimed that
Belyakov could not possibly state a claim for age discrimination where
they had not even seen his application at the time the hiring decision
was made. Belyakov claimed that there was evidence that the Foundation
reviewed his application and knew of his age (which could be inferred
from his resume) because he had received an email response confirming
the Foundation’s receipt of his application and saying that his
background would be reviewed.
The court rejected Belyakov’s argument, explaining that an automated
email reply was not enough to show that the hiring team looked at his
application or recognized his protected status. There was no evidence
that any decisionmaker was aware that Belyakov applied for the job or
knew of his age or acted with any sort of discriminatory animus.
the point
Although the plaintiff’s claim here seems like a stretch, this case
does touch on the concerns with what information is received by who in
the hiring process. To the extent possible, it is best to avoid
providing those with hiring authority with information about protected
characteristics –when you can show that the decisionmaker did not even
have the information, it can go a long way to eliminate an argument that
a discriminatory animus motivated the decision not to hire.
Originally posted to Virginia Employer Law Blog, by Elaine Hogan on February 17, 2016.