Appeals Court Rules Job Applicants Can’t Sue for Systemic Age Discrimination

A federal appeals court has ruled that job applicants cannot sue an employer for promulgating policies and practices that discriminate in hiring on the basis of age.

The ruling is a major setback for victims of age discrimination in hiring, which for years has been widespread, overt and unaddressed.

The full 11th Circuit of Appeals in Atlanta, in a ruling dated Oct. 5, ruled the Age Discrimination in Employment Act of 1967 “makes it clear that an applicant for employment cannot sue an employer for disparate impact because the applicant has no “status as an employee.’” The ruling overturns an earlier 2-1 ruling by a three-judge panel holding that the ADEA permits older job applicants to sue for age discrimination in hiring. The 11th circuit has jurisdiction over cases in Alabama, Florida and Georgia.

The ruling graphically illustrates the lack of protection afforded to older workers compared to victims of other types of employment discrimination. Job applicants are permitted to file so-called disparate impact lawsuits under Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, color and national origin.

The ruling came in the case of Richard M. Villarreal who, beginning at age 49, applied seven times over the Internet for a position as a territory manager at R.J. Reynolds Tobacco Co.   He was never hired and he was never told why his applications were rejected.

The 11th Circuit’s ruling deprives older job applicants of a way to counter modern-day age discrimination in hiring, including the use of covert Internet screening tools.

After being contacted by a whistle blower, a  law firm told Villarreal that Reynolds had contracted with two recruiting firms to develop internet screening tools to target young job applicants for hire and screen out applicant having eight to ten years of experience.

Villarreal filed suit in 2010 against Reynolds and a staffing firm, Pinstripe, Inc., alleging disparate treatment and disparate impact discrimination.

The disparate treatment theory requires the plaintiff to prove the employer engaged in intentional age discrimination whereas the disparate impact theory argues the employer adopted a seemingly neutral policy or practice that had a disproportionate and adverse impact upon older job applicants. The plaintiff is not required to show intentional discrimination under the disparate impact theory.

Villarreal’s case now hangs by a thin thread.

The appeal’s court affirmed the lower court’s dismissal of Villarreal’s disparate treatment claim because it was filed after the statute of limitations expired. The Court agreed that Villarreal failed to exercise “diligence’ because he did not ask Reynolds why he was not hired in 2007. The appeals court remanded the case back to the lower court so Villarreal could pursue a  “continuing-violation” theory that would render his 2007 claim timely.

The appeals court said the ADEA does not permit job applicants to use the so-called disparate impact theory, which challenges company-wide employment policies and practices that adversely affect older job applicants. The court refused to defer to the Equal Employment Opportunity Commission’s argument that the ADEA does permit disparate impact lawsuits “because we do not defer to an agency’s interpretation of a statute when the text is clear.”

The ruling eliminates any means of redress for thousands of older job applicants who applied for positions at Reynolds only to have their applications diverted into a digital trash can sight unseen.

The case is Villarreal v. R.J. Reynolds Tobacco Co., No. 15-10602,(11th Cir.).

Federal Courts Protect Big Law Firms From Competition

justice-scale-761665_1The sad reality is that most victims of illegal employment discrimination have no realistic means of redress.

This is because our court system is absurdly antiquated and has not changed appreciably since it declared itself the place where the buck stops in Marbury v. Madison (1803).

Victims of employment discrimination who are poor or middle class often can’t find an attorney who will take their case because the cost is too high in light of the potential damages. And they can’t effectively represent themselves because federal and state courts have adopted obscure and unnecessary rules and procedures that seem to be designed to keep them out.

There is virtually no public acknowledgement of this problem because apparently it is too complicated or un-glamorous for mainstream media.

I would like to applaud the heroic efforts of an organization that is trying to change this sorry state of affairs – the National Association for the Advancement of Multijurisdictional Practice (NAAMJP) of Los Angeles, CA.  The NAAMJP  has filed lawsuits in several jurisdictions challenging parochial bar admissions rules.

NAAMJP wants to ensure that, once licensed, a lawyer in good standing can practice in any state.

Repealing anti-competitive and  anti-consumer bar admission rules would increase competition among legal service providers and lower costs for consumers. 

The real reason for requiring licensed lawyers to take another state’s bar exam is to discourage them from practicing in that state. In other words, the state bar association is misusing the law to prevent competition. The defenders of the status quo are large and powerful law firms in the state who lobby the legislature and contribute to political campaigns. They are abetted by federal district court judges who want to maintain complete control over their fiefdoms.

According to the NAAMJP, lawyers in the European Union and Canada do not face the kind of  geographical licensing restrictions that are imposed upon U.S.  lawyers (and consumers).

Nevada, for example, requires out-of-state lawyers to take the entire bar exam (a two-day test) as if they had just graduated from law school. This protects a handful of large and complacent Nevada law firms from competition (particularly from California) and enables the state court system to exact high fees for each case filed by an out-of-state attorney or firm. All of this drives up the cost and availability of legal services in Nevada. This is a form of institutionalized corruption that is completely indefensible and yet continues year after year.

Lawyers from around the country regularly contact me for advice about workplace bullying and age discrimination but I cannot represent clients in Nevada because I am licensed in Pennsylvania. Who benefits?  Attorneys in Nevada who know far less about this area of the law than I do.

For anyone who is interested,  The ABA Journal has a story this month about the challenges faced by the NAAMJP  in federal courts, which thus far have shown themselves to be intent upon maintaining the current anti-consumer practices.

The NAAMJP contends that barriers to admission erected by state bar associations violate, among other things, the First Amendment’s guarantee of freedom of association and speech.

Wells Fargo’s Senior Management Must Be Held Responsible for Bank Fraud

The arrogance of Wells Fargo was apparent when it announced earlier this month that it would phase out a questionable “sales goals” program in Jan. 2017. Those sales goals created the incentive for 5,300 Wells Fargo employees (since fired for ethical violations) to create some 2 million fraudulent customer bank accounts. The bank announced Wednesday that it will discontinue the sales goals by the end of the week. Meanwhile, eEx-Wells Fargo employees  filed a class action lawsuit seeking $2.6 billion in damages. Finally, on Oct. 12, 2016, John Stumpf  abruptly “retired.” Stumpf reportedly did not get any severance but will retain more than $100 million in vested stock, plus accumulated pension and 401(k) benefits exceeding $24 million –  Ed.

A few years ago, I opened an account at a local branch of Wells Fargo Bank for a limited purpose. Once that purpose was accomplished, I intended to immediately close the account.

A young bank officer who facilitated the transaction persuaded me to keep the account open. He assured me that he had set up my account in such a way that I would never lose the account balance of $100 deposit through the churning of bank fees.

Of course, in less than a year, all the money was gone, usurped by Wells Fargo in bank fees. Meanwhile, I was assaulted  with notices, offers and credit card applications. One paper in this mountain of paperwork may have contained an obtuse notice that my account was being transferred to a different charge-bearing vehicle. I complained to the bank, which said it was my fault, and then I put the matter behind me, chalking it up to yet another example of pervasive and persistent financial fraud in America.

So this week, it was with interest that I read about the Wells Fargo’s practice of using unrealistic sales goals to pressure employees to set up phony accounts and cheat customers. The bank has fired 5,300 employees for ethical violations and announced it would eliminate all product sales goals in retail banking, effective January 1, 2017.


Remember the financial crisis of 2007, which propelled the world into a deep recession, from which many will never recover?  How much of the Wall Street meltdown was due to unethical practices promulgated by massive financial institutions ( like Wells Fargo) which required workers to lie, cheat, and steal  in order to remain on the payroll?

Why is John Stumpf, Chairman and CEO of Wells Fargo, still working there?

Senior management of Wells Fargo is responsible for the fraud on its customers, not the underlings with families to feed in an unforgiving economy.  The bank employees who were fired for ethical violations are culpable and shouldn’t be working in a position of trust. But Wells Fargo created the incentive for the unethical behavior  of its employees by adopting unrealistic sales goals to increase profits year after year.  Indeed,  Wells Fargo plans to continue enforcing these “product sales goals” until January 2017.

If America permits the senior management of Wells Fargo  to scapegoat its own employees and avoid responsibility for financial fraud, aren’t we inviting another financial meltdown?  Haven’t we learned anything?

Wells Fargo CEO John Stump needs to go. IMMEDIATELY!

The bank has been fined $100 million by the U.S. Consumer Finance Protection Bureau and ordered to pay back consumers harmed by its actions.

Wells Fargo & Company, headquartered in San Francisco, is one of the nation’s biggest banks. It has $1.9 trillion in assets and, according to the company, serves one in three households in the United States. Wells Fargo & Company was ranked No. 27 on Fortune’s 2016 rankings of America’s largest corporations.

Outfoxed: Carlson Settles for $20 Million & Apology

Former Fox News Anchor Gretchen Carlson  has received among the largest payouts in history  – $20 million – to settle a sexual harassment case.

Ironically, the case was settled not by the defendant, former Fox News chairperson Roger Ailes, but by his former employer, 21st Century Fox, the parent company of Fox news.  Ailes, 76, won’t pay a dime. (Not only that,  Ailes received a $40 million payout from Fox when he left his job under pressure in July.)

It is speculated Tuesday that Carlson, a former Miss America,  secretly tape recorded Ailes, whom she alleged refused to renew her contract after she refused to have sexual relations with  him.

The largest sexual harassment award in history is believed to have occurred in 2011 when a federal jury in Tennessee awarded $95 million to Ashley Alford, a young employee who was  sexual  harassed and physically assaulted by a supervisor  at the rent-to-own company, The Aaron’s Inc. The award included $15 million in compensatory damages and $80 million in punitive damages. U.S. District Court Judge J.  Michael Reagan subsequently reduced  the amount the jury awarded Alford on the sexual harassment claim from $4 million to $300,000 pursuant to a federal statutory cap. on damages under Title VII of the Civil Rights Act. Judge Reagan also vacated $50 million of the punitive damages award. That still left Alford with about $41 million.

In addition to the monetary award, 21st Century Fox issued a press release stating:  “We sincerely regret and apologize for the fact that Gretchen was no treated with the respect and dignity that she and all of our colleagues deserve.”

Meanwhile, two other women at Fox reportedly were offered settlements after complaining about sexual harassment.

Carlson’s complaint appears to have prompted the sudden departure of Fox personality Greta Van Susteren from the network on Tuesday. Susteren had publicly defended Ailes and accused Carlson of retaliating against Ailes after  being fired due to poor ratings.

Carlson received little support generally from her former Fox colleagues. In addition to Van Susteren, more than a dozen top personalities at Fox News including Sean Hannity, Neil Cavuto and Kimberly Guilfoyle defended Ailes against claims of sexual misconduct.