Can an employer exclude older job applicants for marketing purposes?

The U.S. Equal Employment Opportunity Commission doesn’t think so.

Last week, the EEOC announced that it had sued a company called “Meathead Movers,” the largest independent moving company in California, for allegedly refusing to hire people based on age. Here’s more from the press release:

The EEOC’s lawsuit charges that since at least 2017, Meathead Movers failed to recruit and hire applicants over 40 into moving, packing and customer service positions. Meathead maintains a pattern or practice of recruiting and hiring young college students, intentionally excluding older workers regardless of their individual abilities, the EEOC complaint continues.

The EEOC further noted that “[e]xcluding older workers based on their age for marketing purposes is unlawful” and “incorrect and unfair assumptions that someone cannot perform a job because of their age — or that clients would prefer younger workers — are the impetus behind the Age Discrimination in Employment Act.”

Indeed, the ADEA prohibits employers from discriminating against people over forty. However, the ADEA permits otherwise unlawful age discrimination when age is a bona fide occupational qualification (BFOQ).

So, if Meathead Movers establish a BFOQ defense, might the age discrimination allegations against be all sizzle and no steak?

It won’t be easy. Courts construe the BFOQ exception to the ADEA narrowly, and the burden of proof is on the employer to prove its employment practice is a BFOQ.

To prevail on a BFOQ defense, an employer must show that the challenged hiring age is reasonably necessary to the essential operation of its business and that age is a necessary proxy for the job qualifications, either because (a) there is a factual basis for believing that all or substantially all persons above the age limit would be unable to perform the duties of the job effectively, or (b) there is proof that individual testing would not indicate whether persons older than the age limit could effectively perform the duties of the job.

Southwest Airlines, which still has the New York Stock Exchange (NYSE) ticker symbol “LUV,” was accused in the 1980s of discriminating against men in favor of attractive female flight attendants and ticket agents to “personify the airline’s sexy image and fulfill its public promise to take passengers skyward with ‘love.” A federal judge concluded that female allure and sex appeal were unnecessary to transport passengers, the primary business function. Therefore, sex was not a BFOQ.

It’s hard to imagine how most or all people over 40 can’t lift and move stuff quickly.

Meathead Movers, which says it is “committed to the principles of equal employment,” may not have a BFOQ defense.

If the allegations are true, it may have no defense at all.