Tipping Point for Age Discrimination in Hiring?

There suddenly are several class action lawsuits pending in federal court that could potentially bring an end to decades of epidemic and unaddressed age discrimination in hiring in the United States.

We may be at a key tipping point.

These cases include:

  • In June 2012,  Richard M. Villarreal filed a federal age discrimination lawsuit in federal court in Gainesville, GA, against R.J. Reynolds Tobacco Co., after learning that Reynolds, working with national staffing agencies, used “resume review guidelines” to weed out the applications of older workers. Villarreal was 49 when he filed the first of a half-dozen applications to work as a territory manager for Reynolds from 2007 to 2010.

The resume review guidelines specified that “desired” candidates had “2-3 years out of college” and told recruiters to “stay away from” candidates with eight to 10 years of experience. Villarreal’s resume and the resumes of hundreds of other older job applicants were dumped into a digital trash can without consideration.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit in Atlanta last year split from other federal circuits and ruled  that job applicants can file lawsuits under the Age Discrimination in Employment Act (ADEA) challenging employer policies and practices that discriminate against older job applicants. These are called disparate impact lawsuits. Reynolds appealed that 2-1 decision to the full court, which in February vacated the panel’s decision  and agreed to rehear the case “en banc” (with the full court sitting in judgment). Oral arguments are scheduled for June 21.  The case was originally fled by attorney John J. Almond of Rogers & Hardin, Atlanta.

  • In April 2015, software engineer Robert Heath filed an age discrimination lawsuit  against Google, Inc. in San Jose. Heath was interviewed but not hired for a position at Google in 2011 when he was 60-years-of-age. The lawsuit alleges Google has demonstrated a pattern and practice of violating the Age Discrimination in Employment Act )ADEA) and California’s Fair Employment and Housing Act (FEHA).

According to the lawsuit, the median age of Google’s 28,000 employees in 2013 was 29 while the median age  for computer programmers in the United States is 42.8 and the median age for software developers is 40.6. The parties are wrangling about whether the case will proceed as a class action under FEHA. The  case was originally filed by attorney Daniel L. Low of  Kotchen & Low, Washington, DC.

  • In April 2016, certified public accountant, Steve Rabin, 53,  filed an age discrimination complaint in federal court in San Francisco against Price Waterhouse Coopers (PwC), a global accounting and auditing firm with gross revenues exceeding $35 billion. Rabin was rejected in 2013 for a position at PwC , which allegedly relies almost exclusively upon campus recruiting to fill entry-level positions and does not post vacancies on its public web site. The only way to apply is through PwC’s “Campus track recruitment tool, which requires a college affiliation.”  PwC  also maintains a mandatory early retirement policy that requires partners to retire by age 60 which allegedly discourages the hiring of  experienced older applicants.

The average age of PwC’s workforce in 2011 was 27, while the median age of accountants and auditors in the United States was 43.2 years old. The lawsuit alleges that PwC’s policies have a disparate impact on older applicants, which means . The lawsuit does not involve PwC’s hiring of executives.  This case was filed by attorneys from the New York firm of Outten & Golden, the AARP Foundation Litigation, and the San Francisco firm, The Liu Law Firm, P.C.

The EEOC also has filed a couple of individual cases in recent months involving age discrimination in hiring.

In my groundbreaking book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show that older workers for years have been disproportionately represented in the ranks of the long-term unemployed. Meanwhile, employers and employment agencies post job advertisements that obviously intend to exclude older workers, using code terms like “seeking digital natives” or “only recent graduates.” Until now, the obvious and rampant nature of age discrimination, especially in hiring, has gone virtually unchallenged.

The New Overtime Rule

The U.S. Department of Labor issued a final rule today changing the white collar overtime provisions of the Fair Labor Standards Act.  The final rule, which goes into effect on December 16, will:

  • Raise the  salary threshold indicating eligibility from $455/week to $913 ($47,476 per year), ensuring protections to 4.2 million workers; and,
  • The salary threshold will be automatically updated every three years, based on wage growth over time, increasing predictability.

This is a big achievement for the U.S. Department of Labor, which has had a decidedly mixed record under the Obama administration, and will benefit millions of low-paid workers – many of whom are women.

For now, white collar workers who earn more than $47,476 per year can still be subjected to merciless exploitation by their  corporate overlords.

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EEOC Pitches Lack of Diversity in the Tech Industry as an “Innovation Opportunity”

*NOTE:  The EEOC issued a report at its meeting (discussed below) that completely ignored age discrimination except for a footnote stating that more research on age discrimination is needed. According to the report,  compared to overall private industry, the high tech sector employed a larger share of whites (63.5 percent to 68.5 percent), Asian Americans (5.8 percent to 14 percent) and men (52 percent to 64 percent), and a smaller share of African Americans (14.4 percent to 7.4 percent), Hispanics (13.9 percent to 8 percent), and women (48 percent to 36 percent). Ed.

After more tGoogle_Mountain_View_campus_dinosaur_skeleton_'Stan'han a decade of ignoring rampant and blatant age discrimination in the tech industry (and everywhere else), the issue appears has surfaced on the EEOC’s radar screen. But it is not  seen as an overly-ripe target for enforcement of older workers civil rights. Rather, it is couched as an “innovation opportunity.”

The EEOC has announced it will hold a meeting in Washington, DC, on Wednesday entitled, “Innovation Opportunity: Examining Strategies to Promote Diverse and Inclusive Workplaces in the Tech Industry.”

While it might be hoped the EEOC would actually enforce the Age Discrimination in Employment Act (ADEA), the Agency deserves credit for acknowledging that age is a diversity issue, which is something that Silicon Valley  stubbornly refuses to acknowledge. Also, the EEOC deserves major kudos given that the Obama administration  for the past eight years, has treated older workers  like an obstacle to diversity and not a group that deserves equal rights under the law.

One of the invited panelists for Wednesday’s meeting is an attorney from the AARP Foundation, which is an organization that the EEOC apparently entrusts to be polite about the EEOC’s regulatory lapses during the past decade. The AARP Foundation almost has to be polite because it’s mothership is the the monolithic AARP, which also has done little to advocate for older workers by combating age discrimination. Moreover, the AARP is reaping billions  from the sale of Medigap health insurance after having lobbied to keep Medigap reforms out of Obamacare. The AARP receives  an estimated 4.95 percent of every dollar that seniors spend on its Medigap plans. These fees are reportedly double the income the AARP receives from “membership:” dues.  A study by the Kaiser Family Foundation found that Medigap reforms blocked by the AARP would have saved the average senior as much as $415 in premiums per year.

It is perhaps not surprising that my name does not appear on the EEOC’s guest list.

My groundbreaking 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, criticizes the systemic inequality of older workers in American society, especially in Silicon Valley. I note that the ADEA was weak to begin with and  then was further eviscerated by the U.S. Supreme Court. Meanwhile, Congress has done nothing to insure equal rights for older workers. I also  criticize the EEOC  for failing to combat an massive increase in age discrimination complaints since 2008 and I point out that President Barack Obama signed a devastating executive order in 2010 that actually legalizes age discrimination in federal hiring.

I may be alone in the U.S. in reporting that the EEOC itself stands accused of engaging in systemic age discrimination in hiring?

Earlier this year I  reported that the U.S. Chamber of Commerce  filed a friend-of-the-court brief in an age discrimination case in which it defended employers who practice age discrimination in hiring by noting that the EEOC does the very same thing.  The Chamber cited the EEOC Attorney Honor Program, which employs in “permanent” positions “third-year law student[s], “full-time graduate law students[s],” and “Judicial Law Clerk[s] whose clerkship must be [their] first significant legal employment following [their] graduation.”  The EEOC states on its web site that graduates of the Honor Program go on to serve as trial attorneys or Administrative Judges in the EEOC’s District Offices. Since the vast majority of recent law clerks and law and graduate students are under the age of 40, it is not a stretch to conclude that the  EEOC program has a disparate impact upon attorneys who are aged 40 and above.  That’s supposed to be illegal under the ADEA.

Criticism of an administration or federal agency often is dismissed as partisan politics.  I do criticize  the Obama administration, the U.S. Supreme Court and Congress for abandoning older workers during the worst recession in 100 years.  Millions of older Americans remain subject to pervasive discriminatory hiring practices and bogus layoffs and restructurings. I do not argue, however, that the Republicans would have done better than the Democrats. I simply don’t think they could have done much worse. That’s why I support Bernie.

Why Things Keep Getting Worse for Workers

Author Thomas Frank in his new book, Listen Liberal: Or, What Ever Happened to the Party of the People, posits that wealth equality worsened during the Obama administration because the so-called party of the working class has been co-opted by a “professional class” of  hyper-educated elite.

He argues –  very convincingly in my opinion – that America is now governed by two political parties, neither of which represents the interests of average workers. This, he says, is why Americans are flocking to outsider Presidential candidates like Donald Trump and Bernie Sanders.

Franks says the Republican Party represents the rich while the Democratic Party represents a  hyper-educated professional elite, many of whom hail from exclusive Ivy League universities.  The class includes a broad swath of professionals, from lawyers and doctors to economists and Internet entrepreneurs.

The Democratic professional class is  liberal on cultural issues, writes Frank, but  NOT when it comes to worker rights.

He cites President Bill Clinton’s strong support for NAFTA, which served the interests of professionals at the expense of  average workers.  He said NAFTA further dis-empowered workers, already reeling from anti-union policies, because it gave companies incentive to pick up stakes and move.

Frank criticizes Obama for bailing out the banks during the Great Recession without prosecuting Wall Street law breakers. He notes the Roosevelt Administration moved frequently to break up big banks and fired Wall Street executives.

Frank also contends that  “Big Medicine” and “Big Learning” are slowly bankrupting America.  With respect to “Big Learning,” he said tuition rates have risen exponentially while more and more PhDs are forced to  work as non-tenured adjunct professors earning about $1,500 per course.

In an excellent interview by Kathy Kiely on Bill Moyers web site, Moyers & Company, Frank calls Bernie Sanders a badly needed voice of discontent in the Democratic party, the only one who is raising issues about monopoly and anti-trust, fair trade, inadequate health care, out-of -control college tuition, etc.

If Sanders is not a candidate in November, Frank said he will vote for Hilary Clinton over Trump, though unenthusiastically.