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Despite legal protections that have existed for almost 60 years, age discrimination remains a persistent problem in workplaces across America. Threshold questions remain about whether job applicants may bring disparate impact claims, how to prove hostile work environment claims, and whether certain employees can obtain fair access to judicial forums to vindicate their rights.
Older Job Applicants and Disparate Impact Claims
The Age Discrimination in Employment Act of 1967 (ADEA) protects workers age 40 and older from age-based employment discrimination. 29 U.S.C. §§ 621-634. There is an emerging circuit split as to whether the ADEA authorizes a disparate impact theory of liability for older job applicants. Disparate impact claims involve employment practices that are “facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 355 n.15 (1977).
In 1971, the Supreme Court in Griggs v. Duke Power Company recognized disparate impact claims for applicants under Title VII of the Civil Rights Act of 1964. 401 U.S. 424, 430 (1971). Later, in Smith v. City of Jackson, Mississippi, the Court allowed disparate impact claims under the ADEA. 544 U.S. 228, 243 (2005). Additionally, the Smith Court appreciated that Congress’s intent in enacting the ADEA was to “give older workers employment opportunities whenever possible” and “to prohibit arbitrary age discrimination in employment.” Id. at 241. Since then, in reviewing disparate impact claims under the ADEA for job applicants—as opposed to current employees seeking promotions, for example—the courts have not been unified in their analysis. Their differences mainly stem from a review of the plain language of ADEA.
In Robinson v. Shell Oil Company, the Supreme Court determined that, under Title VII, when the term “employee” “lacks any temporal qualifier,” it can include people other than current employees. 519 U.S. 337, 342 (1997). Indeed, the unanimous opinion in Robinson, authored by Justice Clarence Thomas, even notes one provision of Title VII where the term “employee” “most naturally is read to mean ‘prospective employees.’” Id. at 343 n.3. In Rabin v. PricewaterhouseCoopers LLP, the U.S. District Court for the Northern District of California held that the plain language of the ADEA protects older job applicants’ right to be free from disparate-impact age discrimination. 236 F. Supp. 3d 1126, 1133 (N.D. Cal. 2017). AARP Foundation represented plaintiffs in this lawsuit.
Since the Rabin decision in 2017, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits have held that the plain language of the ADEA does not extend to job applicants. See Kleber v. Carefusion Corp., 914 F.3d 480, 482 (7th Cir. 2019); Villareal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 970 (11th Cir. 2016). Both Kleber and Villarreal narrowly interpret the phrase “or otherwise adversely affect his status as an employee” in § 623(a)(2) of the ADEA as “limiting the reach of the statutory protection to an individual with ‘status as an employee.’” Kleber, 914 F.3d at 483; Villarreal, 839 F.3d at 964.
More recently, in Mobley v. Workday, Inc., a case currently pending in the Northern District of California, this exact issue has arisen again. No. 23-cv-00770-RFL, 2026 WL 636719, at *2 (N.D. Cal. Mar. 6, 2026), motion to certify appeal denied, 2026 WL 1906986 (N.D. Cal. July 2, 2026). Mobley is a class and collective action suit alleging that Workday uses algorithms to systematically screen out older applicants, and that these algorithmic screening practices have a disparate impact on older job applicants. Id. at *1. AARP and AARP Foundation filed an amicus brief in support of the plaintiffs’ position that ADEA disparate impact claims extend to job applicants. The Mobley Court agreed with our argument, reaffirming its previous decision in Rabin. See Mobley, 2026 WL 636719, at *1-2. While the defendants sought interlocutory review of this issue with the Ninth Circuit, the appeal was denied. See Mobley, 2026 WL 1906986. But it is likely just a matter of time before this question becomes ripe for review by the Supreme Court, which has left open the possibility of a disparate impact theory of liability for older job applicants under the ADEA, but has yet to write definitively on the issue. See Smith, 544 U.S. at 240.
Proving Hostile Work Environment Claims
In 2024, the Supreme Court rejected the heightened requirement that employees bringing disparate treatment claims under Title VII must demonstrate a “significant” employment injury, concluding that no such obligation appears in the statute’s text. Muldrow v. City of St. Louis, Mo., 601 U.S. 357, 354-56 (2024). In that case, the plaintiff, a female police officer, had spent years serving in the City’s Intelligence Division, where she enjoyed significant perks and prestige until a new division commander replaced her with a male officer and the plaintiff was reassigned. Id. at 346. Although the plaintiff’s rank and pay remained the same, she lost the perks and prestige of her previous position. Id. The Court rejected the rule that an “employee challenging a[n adverse employment decision] … must meet a heightened
threshold of harm—be it dubbed significant, serious, or something similar.” Id. at 353. Instead, the Court held that the employee only need show “some harm” related to a term or condition of employment. Id. at 355. Notably, courts have applied the new Muldrow standard to cases brought by older workers under the ADEA. See, e.g., McCrorey v. City of Phila., No. 23-2539, 2025 WL 1392164, at *3 n.3 (3d Cir. May 14, 2025).
Since the Court decided Muldrow, federal courts of appeals have split over whether its “some harm” standard extends to hostile work environment claims or is limited to claims involving discrete discriminatory acts. A discrete act of discrimination consists of an unlawful practice that occurred on a particular date, such as failure to hire or termination. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). In comparison, hostile work environment claims are based on the cumulative effects of individual acts, sometimes occurring over a series of days or perhaps years. Id. at 115. Despite legal differences between the two claims, both discrete acts of discrimination and a hostile work environment can lead to decreased job satisfaction, lower self-esteem, and increased stress levels among older workers, effectively limiting career advancement opportunities for more-senior employees.
In McNeal v. City of Blue Ash, Ohio, the U.S. Court of Appeals for the Sixth Circuit held that Muldrow’s holding applies to both discrete acts of discrimination and hostile work environment claims as they “arise out of the same statutory language.” 117 F.4th 887, 904 (6th Cir. 2024) (plaintiff alleged retaliation and discrimination based on race and age). Indeed, the court recognized that when it considers whether a hostile work environment was severe or pervasive enough, it is effectively asking whether it left an employee “worse off respecting employment terms or conditions.” Id. (citation modified). Conversely, the Tenth Circuit took the opposite position in Russell v. Driscoll, finding that hostile work environment claims are different in kind from discrete acts of discrimination. 157 F.4th 1348, 1352 (10th Cir. 2025). The court further stated, “[t]o say that Muldrow changed [what constitutes a legally actionable hostile work environment] is essentially to say that Muldrow gutted the very thing that distinguishes hostile-environment claims from discrete-act claims.” Id. at 1352-53.
The Third and Eleventh Circuits have yet to directly consider whether Muldrow changes the analysis of a hostile work environment claim, but their opinions appear to mirror that of the Tenth Circuit in Russell. Perhaps more significant, these same two circuits foreshadow more developments on this question and a potential pathway to the Supreme Court. In O’Neill v. Trustees of University of Pennsylvania, the district court granted the defendant’s motion for summary judgment, reasoning that there was insufficient evidence to hold the defendant liable for the harassing conduct of a student who worked in the same lab as the plaintiff. No. 25-1129, 2025 WL 3047884, at *6 (E.D. Pa. Oct. 31, 2025). On appeal in the Third Circuit, the plaintiff is arguing that the
district court applied the wrong standard, and that the hostile work environment claim should have been evaluated under the Muldrow “some harm” lens. See Appellant’s Mot. for Leave to File Reply Br. Exceeding Line Limit at 11, O’Neill, No. 25-3310 (dt), Dkt. No. 41 (3d Cir. 2025). In Gatchel v. Henry County, the district court granted the defendant’s motion for summary judgment on a hostile work environment claim. No. 22-cv-03284, 2025 WL 3191931, at *14-17 (N.D. Ga. Sept. 30, 2025). On appeal in the Eleventh Circuit, the petitioner is arguing that the district court applied the wrong analysis, claiming that Muldrow is the correct standard for evaluating hostile work environment claims. See Br. of Appellant at *31-32, Gatchel, No. 25-13879, 2026 WL 927337 (11th Cir. 2026).
Thus, based on this growing circuit split and the continuing lack of clarity for workers and employers, there appear to be upcoming opportunities for the Supreme Court to directly address the application of Muldrow to the standard of review for hostile work environment claims.
Keeping Certain Transportation Workers From Compelled Arbitration
The availability of judicial remedies remains an important feature of the employment-law system, allowing workers to pursue claims involving alleged discrimination, retaliation, wage and hour violations, and other employment-related rights in court. In recent years, however, employers have increasingly required workers to sign mandatory arbitration agreements as the sole means of resolving their disputes. Employees—especially older workers and others who may not fully understand their rights—face formidable challenges in the arbitral forum, including fear of retaliation, difficulty finding counsel, lack of transparency, inadequate discovery for complex cases, and the absence of meaningful remedies.
Congress enacted the Federal Arbitration Act (FAA) to require judicial enforcement of arbitration agreements. 9 U.S.C. § 1 et seq. From the statute’s inception, however, Congress exempted from the FAA’s coverage “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1. Over the last 25 years, the Supreme Court has gradually clarified the scope of that exemption. In Circuit City Stores, Inc. v. Adams, for example, the Court limited § 1 to transportation workers. 532 U.S. 105, 119 (2001). Nearly two decades later, the Court in New Prime Inc. v. Oliveira held that a “contract of employment” encompasses “any contract for employment for performance of work by workers,” including agreements with independent contractors. 586 U.S. 105, 116 (2019).
Most recently, in Flowers Foods, Inc. v. Brock, the Supreme Court broadly construed the interstate-commerce requirement to include workers who perform the final intrastate leg of an interstate transportation route. 146 S. Ct. 1358, 1364-66 (2026). AARP and AARP Foundation’s supporting amicus brief emphasized the importance of this issue to the 1.6 million adults over 50 years old who work in the trucking industry, many needing access to the courts to remedy wage and hour and other labor violations. Writing for the majority, Justice Gorsuch identified what may be the next significant question under FAA § 1: whether a “contract of employment” can include agreements executed between a company and worker-owned business entities rather than the workers themselves. Id, 146 S. Ct. at 1365-66. A question now emerging in the federal circuit courts is whether § 1 turns on the formal identities of the contracting parties or on the practical reality that an individual transportation worker performs the work covered by the agreement.
Some circuits look to the substance of the working relationship rather than the legal label of the contracting parties. In Silva v. Schmidt Baking Distribution, LLC, the U.S. Court of Appeals for the Second Circuit held that distributor agreements containing mandatory arbitration clauses executed by delivery drivers through single-employee corporations were nevertheless “contract[s] of employment” under FAA § 1’s transportation worker exemption—even though the agreements were executed by corporate entities rather than by an individual. 162 F.4th 354, 356-57, 360-63 (2d Cir. 2025), cert. denied sub nom., Schmidt Baking, LLC v. Silva, No. 25-1124, 2026 WL 1377157 (U.S. May 18, 2026). The court emphasized that courts must look to “the substance of an agreement, not its formalities” to determine whether there is a contract of employment.” Id. at 362. Similarly, the Third Circuit in Adler v. Gruma Corp. reinforced the concept that a “contract of employment” should be construed broadly to cover any agreements to perform work, including, as in that case, ones classifying the transportation worker as a “franchisee.” 135 F.4th 55, 69 (3d Cir. 2025).
Other appellate courts have focused on the formal identity of the contracting parties and have declined to extend FAA § 1 to agreements between business entities. The Fourth, Sixth, and Ninth Circuits have generally concluded that agreements between business entities fall outside of § 1. These courts reason that the exemption applies to “workers” and “contracts of employment,” not to commercial agreements between business organizations. They have therefore refused to apply the arbitration exemption where the contracting party, for example, is a business entity employing multiple drivers or operating a commercial enterprise. See, e.g., Amos v. Amazon Logistics, Inc., 74 F.4th 591, 593, 596-97 (4th Cir. 2023) (declining to find § 1 exemption where contracting party was delivery business employing 450 drivers rather than an individual transportation worker); Fli-Lo Falcon, LLC v. Amazon.com, Inc., 97 F.4th 1190, 1195-1201 (9th Cir. 2024) (holding that business entities cannot invoke transportation worker exemption and that agreements between Amazon and LLCs were “commercial contracts”); Tillman Transp., LLC v. MI Bus. Inc., 95 F.4th 1057, 1063-64 (6th Cir. 2024) (same). The resulting circuit split reflects competing interpretations of § 1.
The issue continues to gain traction. The U.S. Court of Appeals for the First Circuit is currently considering the question in two pending cases: Peltier v. Lepage Bakeries Park Street, LLC, No. 25-1956 (1st Cir. 2025) and Igwenagu v. Bimbo Bakeries USA, Inc., No. 26-1361 (1st Cir. 2026). Depending on the outcome, Supreme Court review may be needed to determine whether the meaning of “contract of employment” in FAA § 1 turns on the formal identity of the contracting parties or the practical reality that an individual transportation worker performs the contracted-for work. As transportation companies increasingly structure their relationships with workers through LLCs and similar entities, the issue is likely to recur.
Victoria Williamson, VWilliamson@aarp.org
Dean Graybill, DGraybill@aarp.org
2026 Supreme Court Preview
The Supreme Court often hears cases affecting the lives of people over 50. Read our review of key cases coming before the Court this year and likely to come in the future.
2026 Supreme Court Preview
The Supreme Court often hears cases affecting the lives of people over 50. Read our review of key cases coming before the Court this year and likely to come in the future.