Texas Roadhouse Goes to Congress

Texas Roadhouse

It all comes back to Hooters.

In the 1990s, the U.S. Equal Employment Opportunity Commission declared that Hooters’ policy of not hiring males to be servers constituted sex discrimination. Hooters launched a “public awareness campaign” asking customers to complain to the U.S. Congress. The EEOC backed down, citing budgetary limitations.  In other words, Hooters’ thwarted the EEOC’s efforts to battle irrational and illegal discrimination in the workplace without even having to go to court.

Now the Kentucky-based restaurant chain Texas Roadhouse is following Hooters’ example. It is facing a 2011 lawsuit filed by the EEOC that alleges the company does not hire workers over the age of 40 for “front of the house” positions. Texas Roadhouse apparently is concerned that it might actually lose in court (though, God knows why) so it has taken its battle to the U.S. Congress, where it has succeeded in marshaling the support of prominent Republicans.

According to EEOC documents, Texas Roadhouse managers were not subtle when they turned away older applicants. They made comments like:

  •  “We think you are a little too old to work here … We like younger people.”
  • “We’re hiring for greeters, but we need the young, hot ones who are chipper and stuff.”
  • “You seem older to be applying for this job.”

And the EEOC is not exactly aggressive when it comes to age discrimination. It received 20,588 complaints of age discrimination in 2014, which was about 23 percent of all claims it received.  It filed 12 lawsuits in 2014 with age discrimination claims, which was about 7 percent of all of the lawsuits it filed.  Of course, in most cases, age discrimination was just one of several claims.

Still, outraged Republicans on the House Education and Workforce Committee say they are looking into why the EEOC investigates companies in the absence of a specific complaint – companies like Texas Road House!

U.S. Sen. Lamar Alexander, R-TN, a member of The U.S. Senate Committee on Health, Education, Labor and Pensions, last year issued a “Minority Staff Report” claiming the EEOC had supposedly refused to provide Texas Roadhouse with “the basis for its investigation” into the restaurant chain.

And, of course, behind the scenes is the ever-present U.S. Chamber of Commerce, which issued a report last year blasting the EEOC for its supposed over-zealousness and “questionable enforcement tactics and legal theories.”

Meanwhile, Texas Roadhouse CEO and founder W. Kent Taylor has the gall to criticize the EEOC for targeting his restaurant chain when it has 70,000 cases of “racial and other complaints of discrimination that are back-logged on and not acted on.”   As if Taylor gives a hoot about workplace discrimination!

Isn’t it enough to turn your stomach?

Was Age Bias Behind Trader Joe’s “Reorganization”?

Trader Joe's

A class-action lawsuit alleges that Trader Joe’s implemented a company-wide “reorganization” plan last year to drive out older workers.

According to the complaint,  a company-wide reorganization by Trader Joe’s, the grocery store chain for affluent yuppies, resulted in the systematic demotion of employees over the age of 45 in violation of the U.S. Age Discrimination in Employment Act.

The suit was brought by Keith Garlough, 49, an eight-year veteran employee of a California Trade Joe’s store, who was demoted from the position of “merchant,” which is one rung below assistant store manager,  to an entry-level crew position.  He states he suffered an $8.50 per hour loss in pay, a reduction in hours and was no longer eligible for bonuses and overtime pay. He also incurred greater health insurance costs and received fewer health benefits, less vacation and leave pay, and diminished retirement contributions.

I note in my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, that it is a common practice  for employers to use the device of a “restructuring” or “business reorganization” to eliminate or demote older workers. There hasn’t been much litigation over the practice because age discrimination is treated like a second-class offense in U.S. federal courts.  If these cases aren’t immediately dismissed, federal judges permit employers to avoid accountability by dragging out these cases for years. In one major case at least two older workers died  while their age discrimination case was permitted to languish for ten years until it was dismissed!

In addition to the ADEA, the complaint alleges Trader Joe’s  company-wide policy violated the California Fair Employment and Housing Act and California’s competition law.

The case is Garlough v. Trader Jos’s Co., # 3:15-cv-01278 and was filed in U.S. District Court for the Northern District of California.

Trader Joe’s has more than 200 stores in Arizona, California, Connecticut, Delaware, Illinois, Indiana, Maryland, Massachusetts, Michigan, Missouri, Nevada, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Virginia and Washington.

What is a Reasonable Management Action?

Australia

It can be a tough call in a workplace bullying case to ascertain whether an employer’s disciplinary action was reasonable or a pretext for bullying.

The United States is literally in the dark ages with respect to workplace bullying but not so Australia, which  a year ago authorized a national workplace relations tribunal to decide workplace bullying complaints pursuant to a  2009 law.

The mission of  Australia’s Fair Work Commission (FWC)  is: “Helping Australians create fair and productive workplaces.

The FWC recently ruled upon an employer’s objection that it lacked jurisdiction to hear a worker’s bullying complaint because the complaint was based on a reasonable management disciplinary action. The FWC disagreed, finding that the employer’s disciplinary action was not reasonable and the commission could hear the case.

The dispute arose when a Human Resources Officer of a radiology firm sent a letter  marked “Disciplinary Process” to a worker threatening possible dismissal for issues involving efficiency, following directions, attitude and rudeness.

The FWC found that  two elements are necessary to constitute a reasonable management action:

  1. There must be some line of “cause and effect between conduct, behavior or performance of an employee,” and
  2. The relevant management action must be a “reasonable and proportionate response to the attributes of the employee to which it is directed.”

The FWC said it would have been reasonable for the radiology firm to place the worker on a routine performance management plan. The company’s threat to terminate the worker was deemed excessive and unwarranted, especially because the worker had responded positively to the issues raised about his performance. One commissioner said differences of opinion regarding the appropriateness of a certain work practice “did not reasonably warrant ‘disciplinary action’ as opposed to discussion about appropriate procedures with the employees involved.”

The U.S. government has ignored the problem of workplace bullying  which is said to affect one in every three or four workers. Indeed, the vast majority of workers here can be fired for any reason, whether it is fair or not,  as long as it does not violate an actual law (i.e. race or sex discrimination laws).

Australia passed a Fair Work Act in 2009 that provides recourse for  all workers there when:

  •  another individual or group of individuals “repeatedly behaves unreasonably towards the worker”; and
  • “that behaviour creates a risk to health and safety.”

The law exempts reasonable management actions  that are carried out in a reasonable manner.

The above case is James Willis v Marie Gibson; Capital Radiology Pty Ltd T/A Capital Radiology; Peita Carroll [2015] FWC 1131.

Report: Most Women’s Careers Die at 45

Ros Altmann

While the U.S. continues to ignore the on-going epidemic of age discrimination here, a new report in the United Kingdom posits that ageism and sexism combine to effectively end women’s careers at the age of 45.

Men continue to progress until around age 55, when they are written off by employers  as being “past it.”

These are some of the results of a major report by economist Ros Altmann, who was appointed last year by the United Kingdom’s Department for Work and Pensions Minister to serve as the U.K.’s  Business Champion for Older workers.

Altmann told the British Daily Mail and Independent newspapers that senior human resource professionals report that women’s career progression in most companies stops around the age of 45.  She said that nearly half the growth in female employment since the recession has been in low-paid, part-time work, mainly  clerical, caring and cleaning work.  Here are some other findings:

  • Older workers with young bosses tend to face the worst age discrimination.
  • Employers wrongly assume that older workers are less familiar with computer technology and are unable to learn.
  • Women face an extra layer of discrimination because employers want young, female staff who “look a certain way.”

Altmann recommends the government threaten  job recruitment firms with penalties unless they do more to prevent age discrimination. She said all job advertisements should clearly state the application is open to everyone regardless of age. She also recommends a national “confidence” campaign for discouraged older workers and proposed that companies offer “mature” apprentice programs.

The U.S. Slumbers on … 

The U.K. initiative stands in sharp contrast to the complete lack of action in the United States to combat blatant and epidemic age discrimination in the workplace.

Indeed, President Barack Obama made things incrementally worse  when he signed an executive order in 2010 establishing the Pathways “Recent Graduates” program that allows the federal government to discriminate in hiring against older workers. Why should private sector employers comply with the Age Discrimination in Employment Act if the federal government won’t?  And the Obama administration is currently sponsoring a White House Conference on Aging, which has totally ignored pleas to address the problem of age discrimination.

Meanwhile, many job applicants must fill out on-line applications which require disclosure of age-related information that allows companies to screen out older workers.

In my new book, Betrayed: The Legalization of Age Discrimination in the Workplace, I show there is far less protection from age discrimination than other types of illegal discrimination in the United States because the ADEA was weak to begin with and has been eviscerated by the U.S. Supreme Court.

Altmann  notes that by 2022, there will be 700,000 fewer people aged 16 to 49 in the UK  but 3.7 million more people aged between 50 and the state pension age. “If the over-50s continue to leave the workforce in line with previous patterns, we would suffer serious labour and skills shortages which could not be filled by immigration alone,” she said.