Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—9th Cir.: Medical residency admission was excluded ‘employment practice’ under 1975 Age Act, (Aug 19, 2025)

By Jason Albright, J.D.

The plaintiff, whose performance in med school was mixed, had previously complained that his birth in the United States played a determinative role in the university’s selection process.

The Age Discrimination Act of 1975 did not apply to the University of California San Francisco’s refusal to admit a physician—who graduated with his M.D. at age 36 and alleged that he was subject to harassment based on his age while in medical school—to its neurological surgery residency program, the Ninth Circuit found. The Age Act exempts from its coverage “any employment practice of any employer,” and giving the terms “employer” and “employment practice” their ordinary common-law meaning, ranking medical residents is an employment practice to which the Age Act does not apply, the appeals court concluded (Spatz v. Regents of the University of California, No. 24-2997 (9th Cir. Aug. 18, 2025)).

36-year-old med school grad. The plaintiff graduated from medical school at the University of California San Francisco (UCSF) in 2021, and at the time of his graduation, he was 36 years old.

Alleged age-based harassment during med school. In 2017 and 2018, while he was in medical school, he was purportedly subject to two instances of harassment based upon his age. He reported both incidents to the school, but it declined to investigate.

Mixed performance. His performance in med school was mixed. He received positive performance evaluations in many of his classes and clinical internships but received some negative evaluations as well, particularly in connection with his sub-internships. Although the parties dispute exactly how well he performed, he conceded that, overall, his grades in medical school were “middle of the pack.”

Residency ranking process. As part of the National Resident Matching Program process, medical schools rank the applicants they would like to accept into their program, and applicants do the same with respect to the medical school residency programs they would like to join. These rankings are then fed into a centralized algorithm that matches students with programs based on a variety of factors. There is no guarantee that every medical student will be matched with a residency program.

2020 match year. The plaintiff first applied to medical residency programs in the 2020 match year. In that year, he ranked 18 neurological surgery programs and listed UCSF’s neurological surgery program as his first choice. However, he was not accepted into any medical residency program, either at UCSF or elsewhere.

2021 match year. He applied to residency at UCSF and elsewhere again in 2021, and he again failed to match with any program. It was undisputed that UCSF did not rank him in either year. He claims, and USCF did not dispute, that had it ranked him in either year he would have matched with its program.

Age-based allegations. He claimed that the school’s refusal to rank him, and by extension accept him into UCSF’s neurological surgery residency program, was the product of age-based discrimination and retaliation. To support this accusation, he cited various statements made by interviewers that are allegedly indicative of age-based animus, a written interview evaluation indicating that his age was an area of concern, and conversations he had with UCSF faculty that suggested to him that his age was discussed during the meeting at which faculty ranked residency candidates.

Retaliation allegations. He also alleged that his non-ranking was in retaliation for reports of discrimination he had previously made to the school. First, he alleged that he was retaliated against for reporting the two instances of age-based harassment in 2017 and 2018.

Complaints of disability and national origin discrimination investigated. He also alleged that he was retaliated against for filing a formal complaint of discrimination in February 2020, which alleged that his age, disability, and birth in the United States was playing a determinative role in UCSF’s residency selection process. In response to this 2020 complaint, UCSF investigated his allegations of disability and national origin discrimination and found no wrongdoing.

However, UCSF did not investigate the allegations of age-based discrimination.

Mediocre grades and performance. UCSF, in contrast, alleged that the applicant failed to match with UCSF’s program because he had mediocre grades and performed poorly during his sub-internships. The school cited various documents that corroborate this purportedly poor performance.

One percent acceptance rate. It also highlighted that UCSF’s neurosurgery residency program accepts only three or four residents per year out of an applicant pool of over 300, amounting to a one percent acceptance rate. UCSF put forward declarations of participants in the match selection meeting generally stating that the applicant’s age was not discussed at the meeting, the declarant either did not know about or did not consider his complaints of age discrimination, and, with one exception, age played no role in the decision-making process.

Lawsuit. After he failed to match with UCSF in 2022 and was not given an interview, the applicant filed suit alleging (1) age discrimination in violation of the Age Act, 42 U.S.C. § 6101 et seq.; (2) age discrimination in violation of California’s Fair Employment and Housing Act (FEHA); (3) disability discrimination in violation of the FEHA; (4) harassment in violation of the FEHA; (5) retaliation in violation of the FEHA; (6) failure to prevent discrimination and retaliation in violation of the FEHA; and (7) whistleblower retaliation in violation of California Health & Safety Code § 1278.5.

Summary judgment for UCSF. After discovery, the defendant moved for summary judgment on all of the applicant’s claims. The applicant’s opposition addressed solely his Age Act claim.

The district court granted UCSF’s motion in its entirety, and with respect to his Age Act claim, it concluded that the Age Act does not apply to the residency selection process because it constitutes an “employment practice” beyond the scope of the Act.

This appeal followed.

Employment practices exempted. The Ninth Circuit initially observed that the threshold question it must address is whether the 1975 Age Act applies to the challenged conduct. The Age Act states that “no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102. And it stands in contrast to the Age Discrimination in Employment Act of 1967 (ADEA), which generally prohibits age-based employment discrimination.

The Age Act provides that “[n]othing in this chapter shall be construed to authorize action under this chapter by any Federal department or agency with respect to any employment practice of any employer, employment agency, or labor organization, or with respect to any labor-management joint apprenticeship training program.” 42 U.S.C. § 6103(c)(1); see also 45 C.F.R. § 90.3(b)(2). The Age Act further provides that “[n]othing in this chapter shall be construed to amend or modify the [ADEA]... or to affect the rights or responsibilities of any person or party pursuant to” that act. 42 U.S.C. § 6103(c)(2).

Thus, concluded the appeals court, “insofar as the conduct challenged by plaintiff constitutes an ‘employment practice of any employer,’ the Age Act does not apply.”

Residency admission as “employment practice.” The Ninth Circuit found that the decision not to accept the applicant into UCSF’s neurological surgery residency program constituted such an “employment practice of any employer.”

Although neither the Age Act nor its implementing regulations define the terms “employer” or “employment practice,” at common law, the appeals court observed, an “employee” is generally defined as “[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.”

ADEA context considered. In the ADEA context, the appeals court further observed, courts consider the following factors to determine if an individual is an employee: (1) the skill required; (2) source of the instrumentalities and tools; (3) location of the work; (4) duration of the relationship between the parties; (5) whether the hiring party has the right to assign additional projects to the hired party; (6) the extent of the hired party’s discretion over when and how long to work; (7) the method of payment; (8) the hired party’s role in hiring and paying assistants; (9) whether the work is part of the regular business of the hiring party; (10) whether the hiring party is in business; (11) the provision of employee benefits; and (12) the tax treatment of the hired party.

Virtually every factor supports hiring analogy. And although the record was “not as well developed as it could be,” the appeals court found that virtually every one of these factors suggested that ranking medical residents is akin to hiring an employee.

As to the first factor, the Ninth Circuit noted, residency requires substantial skill, including a degree from a medical school. As to the second and third, the hospital provides both the “instrumentalities” and “location” of work. As to the fourth, “the ‘duration’ of the residency is long, lasting upwards of four years. As to the fifth, sixth, ninth, and tenth factors, medical residents “work extremely long hours—up to 80 hours a week—and are directly responsible for providing patient care, which suggests medical residents are ‘part of the regular business of the’ hospital and the hospital has substantial control over the work residents perform.” And finally, as to the seventh, 11th, and 12th factors, medical residents are paid a salary, provided with benefits by UCSF, and are taxed as employees.

Ultimately, declining to definitively categorize medical residents as employees or students to resolve the case, the Ninth Circuit held more narrowly that ranking medical residents is an employment practice to which the Age Act does not apply.

The case is No. 24-2997.

Judge: Koh, L.

Attorneys: Dow Wakefield Patten (Forthright Law) for Jordan Spatz, M.D. Don Willenburg (Gordon Rees Scully Mansukhani) for Regents of the University of California.

Companies: Regents of the University of California

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