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 under the Age Discrimination in Employment Act 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.).

Taxpayers Subsidize Age Discrimination by Feds

It is ironic that our nation’s largest employer, the U.S. government, is one of the worst offenders with respect to age discrimination in hiring.

President Barack Obama in 2010 unilaterally signed an executive order that allows federal agencies to by-pass older workers, ignore merit and qualifications, and to hire “recent graduates” and “entry-level jobseekers” for permanent federal jobs. Since the vast majority of recent graduates and entry-lvel job seekers are under the age of 40, Obama’s order has an obvious discriminatory impact on older workers. Yet, there was no public outcry when Obama signed this order – not from the AARP or the American Civil Liberties Union.

Obama couched his action in terms of increasing diversity in federal hiring but he offered no evidence that it was necessary to resort to age discrimination, which is illegal under the Age Discrimination in Employment Act of 1967. Obama’s order operates as an exemption to the ADEA. Furthermore, Obama’s order discriminates against older African Americans and Hispanics, as well as older whites.

Not surprisingly, older applicants face a mountain of discrimination when applying for lucrative federal positions.

James W. Moeller, then 57, filed a federal age discrimination lawsuit last year after he applied for several positions an attorney at the Federal Energy Regulatory Commission (FEC) in Washington, DC. He was never  granted an interview despite the fact that he is a Harvard Law School graduate with 30 years of federal energy regulatory experience.  Moeller has represented clients before the FEC, the U.S. Nuclear Regulatory Commission and the Maryland Public Service Commission. He is a leading scholar on federal energy regulatory law, having published numerous scholarly articles on the topic.

Meanwhile, the FEC granted interviews to younger, less qualified applicants, who were subsequently hired.

How come a guy like Moeller who objectively has superb qualifications could not even get an interview with the FEC? Could it be … uh … age discrimination?

Moeller’s  lawsuit states the FEC “claims that it cannot discriminate on the basis of age because it has no knowledge of the ages of its job applicants. This claim is based on the fact that job applicants generally do not include their dates of birth on their resumes.”  Moeller argues – and basic common sense dictates – that employers can infer the age of a job applicant based upon the applicant’s job history.

It is arguably a much greater failing for the federal government to discriminate against older workers because  we are shareholders in the enterprise through our tax dollars. In addition, discrimination by the federal government sends a signal to the private sector that age discrimination is acceptable and will be tolerated.

In my book, Betrayed: The Legalization of Age Discrimination in the Workplace, I explore other ways in which all three branches of the federal government have overlooked, abetted and trivialized age discrimination in employment. I also show how the ADEA provides far less protection for older workers than is provided by Title VII of the Civil Rights Act to workers on the basis of race, sex, national origin, color and religion.

*See Moeller v. Bay, Case No, 1:15-cv-00724 (2015) U.S. District Court for the District of Columbia.

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 1998 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.

‘Transgender’ Now Accorded More Protection than ‘Age’

There is a national movement going on right now to boycott states that force transgendered individuals to use the restrooms of their biological sex rather than their chosen identity.

Many companies, including  Target, have denounced  laws that restrict  a transgender individual’s choice of bathroom as sex discrimination.  Some major American corporations  have threatened to withdraw from North Carolina because it has limited the right of transgendered individual to use their bathroom of choice. Moreover, a three-judge panel of the U.S. Court of Appeals for the 4th Circuit recently voted 2-1 to uphold the  U.S. Education Dept.’s position that it constitutes illegal sex discrimination to exclude transgender students from the bathrooms of their chosen gender identities.

According to the most frequently cited estimate, 700,000 people in the United States, or about 0.2 to 0.3 percent of the population, identify as transgender.

Compare this to the millions of older workers who each year are subject to epidemic and overt age discrimination in employment with nary a hint of protest or outrage from anyone, including organizations that purport to advocate for older Americans and civil rights.

 Indeed, at this point, transgender people technically have greater rights under the law than older workers to be free from invidious discrimination.

The U.S. Equal Employment Opportunity Commission contends that trangendered individuals are protected by Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, sex, religion, national origin and color. By contrast, age discrimination falls under the Age Discrimination in Employment Act of 1967, (ADEA), which permits “reasonable” age discrimination by employers.   Title VII also contains penalties that are far more onerous than those of the ADEA.

Why have the rights of millions of older Americans to be free from irrational and harmful employment discrimination been ignored for 50 years?

The rights of transgendered individuals are at issue today because advocates in  the gay and lesbian communities and in the entertainment community have taken a public stand to combat ignorance and prejudice against transgendered individuals. This has essentially forced major corporations to adopt policies prohibiting discrimination against the transgendered so as not to be seen as endorsing transgender discrimination.

Alas, the same is not true for older workers.

No one is demanding that Congress  or the courts accord equal rights to older workers under the law, including the AARP, the EEOC  and the American Civil Liberties Union.  Meanwhile, the same corporations that demand rights for the transgendered are engaging in systemic age discrimination.

The plight of older workers began in 1964  when Congress refused to include age as a protected class in Title VII.  After three years of lobbying by business interests, Congress passed the ADEA, a severely watered down version of Title VII that  has exposed generations of older Americans  to wholesale and perfectly legal age discrimination in employment, especially in hiring.

There also is little public sympathy for older workers.  Stereotypes about older people are profoundly negative  (i.e. rigid, feeble, depressed). Older workers often are seen by younger workers as impediments to job advancement and limited resources. Employers, including the U.S. government, treat older workers like an obstacle to a more diverse workforce. Moreover, researchers say many people subconsciously associate aging with death and disease.  There also is little understanding about the long-term and severe impacts of age discrimination, which condemns millions of women  to decades of poverty in their later years.

Of course, these observations are not meant to begrudge transgender individuals their basic human right to be treated with dignity and respect but simply to point out that older Americans too deserve to be free from invidious and harmful  discrimination.  If every type of irrational and harmful  discrimination is treated with the same degree of condemnation and outrage, there will be far less discrimination against all Americans, including transgendered individuals.