management labor & Employment law

Is it permissible for an employer in Florida to see that an applicant has many years of experience and decide to not hire the applicant because it is likely that the applicant will retire shortly?

An applicant heard of a vacant position through “word-of-mouth” and sent a letter of interest to the employer’s hiring official.  The applicant had obtained an advanced degree, graduating with honors from a reputable school. The applicant had been working in his desired field for about 30 years. During an interview with two of the employer’s high level officials, one of the officials allegedly expressed some concern that the applicant would not have a long tenure with the employer because he had already worked for the for many years and might be nearing retirement.

Law Office of David Miklas, P.A.

At the end of July 2017 the EEOC announced this lawsuit has been settled for $60,000EEOC v. Commonwealth of Pennsylvania, Office of Open Records, Civil Action No. 1-15-cv-01895-CCC).

An EEOC spokesperson stated that the “EEOC will take vigorous action when an employer makes a hiring decision because of age.”

The employer selected a 40-year-old candidate who had significantly less experience than the older candidate for the position.

The applicant filed a charge of discrimination and the U.S. Equal Employment Opportunity Commission (EEOC) found cause to believe that age discrimination took place and sued on the applicant’s behalf. 

The EEOC was asking the court to order the employer to pay the applicant back wages, doubled in the form of liquidated damages, and to award prejudgment interest. The lawsuit also asked the court to order the employer to either hire the applicant or award him “front-pay.”   Front pay may be awarded in lieu of reinstatement where:

(1) no position is available;

(2) a subsequent working relationship between the parties would be antagonistic; or

(3) the employer has a record of long-term resistance to discrimination efforts.

Can I be concerned that an applicant might be nearing retirement?

Florida business owners are reminded that 2017 marks the 50th anniversary of the Age Discrimination in Employment Act (ADEA).  This settlement sends a strong message to all of Florida’s employers, public and private, that the EEOC is targeting age discrimination claims for litigation.

Florida human resource directors should realize that the EEOC is paying special attention to claims of age discrimination, especially this year. Just last month the EEOC held a meeting on the state of age discrimination in America today and how the EEOC can take action against employers who discriminate based on age.


Recently, David Miklas was quoted in an article published by ADP addressing training workers on technology in the workplace in which he was quoted as follows: "Employers should absolutely be training their older workers...But some employers may feel it's not worth the investment because these employees may be close to retirement. Miklas points to a CareerBuilder report that indicates that the age 55-plus workforce has grown by 40 percent since 2001. The benefits of continuing to train this segment of the workforce, he says, includes greater professionalism, stronger work ethic, greater reliability, high engagement and low turnover. 'They are, in fact, much more likely to stay around than their millennial colleagues, making the investment in training a wise investment,' says Miklas."


Due to the confusion of whether something is age discrimination under the ADEA, business owners on the Treasure Coast and in South Florida regularly call our law firm.


If you need any assistance in handling age discrimination matters or issues dealing with hiring older workers concerning your Florida business, please promptly email or call the Law Office of David Miklas, P.A. at 1-772-465-5111.

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