Appeals Court Tackles Systemic Age Discrimination in Hiring

For years, it has been widely suspected that older applicants are being screened out of competition for jobs by employers using discriminatory computer software  programs.

This is why a landmark ruling this week  by a three-judge panel of the  U.S. Court of Appeals for the Eleventh Circuit in Atlanta is an important step in the battle against epidemic and systemic age discrimination in hiring.

In a 2-to-1 decision, the panel ruled:

  • The Age Discrimination in Employment Act does not bar job applicants from filing a disparate impact claim, a type of charge that challenges a facially neutral policy that has a disproportionate impact on older workers. This paves the way for older job applicants to file collective actions alleging age discrimination in hiring, a form of class action lawsuits permissible under the ADEA.
  • A job applicant should not be barred from filing an age discrimination lawsuit by the ADEA’s 180-day statute of limitations if the  applicant had no way of knowing that s/he was the victim of age discrimination.  The appeals court said the “clock” starts ticking when the plaintiff has enough information to support a cause of action.

The case was filed by job applicant Richard Villarreal, who submitted multiple online applications to work as a sales manager for RJ Reynolds Tobacco starting in 2007 when Villarreal was 49 years of age. Villarreal did not learn until 2010 that Reynolds had adopted “resume review guidelines” that weeded out older applicants. At that point, he filed a discrimination lawsuit alleging both disparate treatment (intentional discrimination) and disparate impact discrimination. Obstacles embedded in theADEA led to the dismissal of Villarreal’s lawsuit by the lower court.

Specifically, the guidelines tell hiring managers to target candidates who are “2–3 years out of college” but to “stay away from” candidates with “8–10 years” of prior sales experience. 

The appeals court reversed the  lower court’s findings that the ADEA does not permit disparate impact claims and that Villarreal’s lawsuit was not timely under the ADEA’s  180-day statute of llmitations.

With respect to disparate impact claims, the appeals court  deferred to the U.S. Equal Employment Opportunity Commission’s interpretation of the ADEA, which is that job applicants can file disparate impact lawsuits. The appeals court panel writes, “We must defer to the EEOC’s] reading rather than venture our own guess about what the statute means.” The dispute over whether the ADEA authorizes disparate impact lawsuits by job applicants stems from the fact that  Congress amended Title VII of the Civil Rights Act in 1972 to protect “applicants for employment” but never similarly amended the ADEA.

The panel stated that Villarreal simply had too few facts to support an age discrimination claim until 2010 when a statistical analysis showed that  Reynolds had hired  1,024 people as Territory Managers from September 2007 to July 2010 but only 19 were over the age of 40.  The panel applied an equity or fairness-based principle to toll the statute of limitations until Villarreal had sufficient information to support a cause of action.The panel notes that neither the job application nor any other information available to Villarreal “described Rj Reynolds hiring process, the resume review guidelines, or the statistical disparities in the ages of successful applicants.”

Other defendants in the case are Careerbuilder.com, the internet search giant, and Pinstripe, Inc., a technology consulting firm based in Charlotte, NC.

The case is Villarreal v. R.J. Reynolds Tobacco Company, Pinstripe, Inc.  Careerbuilder, LLC.  The ruling technically is only applicable to the 11th Circuit, which  has jurisdiction over federal cases originating in the states of Alabama, Florida and Georgia. According to the dissent, three other federal circuits have held that job applicants cannot file a disparate impact claim. A conflict between the circuits can only be resolved by the U.S. Supreme Court.

National Coalition to Tackle Workplace Bullying

I am pleased to announce that this blog is a founding member of the National Workplace Bullying Coalition (NWBC), the first organization dedicated to seeking a national solution to the problem of workplace bullying in the United States.

The NWBC proposes a convention, similar to a constitutional convention, to detail the nature of workplace bullying, the negative consequences to both employers and employees, how today’s business leaders address the issue and what remains to be accomplished. The NWBC supports state and local efforts to address workplace bullying but the goal ultimately is to achieve a national  law or regulations that  provides employers with incentive to insure a safe, healthy and bully-free workplace for all employees.

Many developed countries around the world already have legislation in place to address workplace bullying. However, in the vast majority of workers in America workers have no protection unless they can shoehorn their claim under an existing law, such as Title VII of the Civil Rights Act of 1964, which protects individuals on the basis of race, sex, religion & national origin.

The Workplace Bullying Institute has backed state legislation, the proposed Healthy Workplace Bill (HWB), since 2002.  Versions of the HWB have been proposed in more than 20 states but none of the bills have passed, raising questions about the viability of this approach.  Also, it is highly unlikely that  so-called “pro business” states will willingly adopt workplace anti-bullying legislation, leaving employees with no recourse.

Nevada State Senator Richard Segerblom of Las Vegas, NV, has proposed a different solution to the problem of workplace bullying that some consider to be more promising than the HWB approach.  Segerblom has proposed amending Nevada’s employment discrimination law so that  anyone who is a victim of a hostile workplace environment has a legal remedy whether or not they can show illegal discrimination. In other words, he has proposed making the hostile workplace remedy “status blind.”

Many national surveys show that workplace bullying is epidemic in the United States.  CareerBuilder in 2011 found that one in four workers in the United States experience workplace bullying, which has potentially severe mental and physical health impacts.  Most targets of workplace bullying are expelled from the workplace – fired or forced to quit – and many suffer the symptoms of post traumatic stress syndrome for years afterward.

The NWBC is an outgrowth of New Jersey workplace anti-bullying efforts and a loose-knit coalition called  Protect U.S. Workers, created by this blog and documentary filmmaker  Beverly Peterson of Our Bully Pulpit.  The NWBC supports the on-going petition drive by Protect U.S. Workers’  calling upon the Obama administration and the Secretary of Labor to adopt a national approach to workplace bullying.

Membership  in  the new coalition includes The Honorable Sue Pai Yang, who retired in 2012 after serving as  the  first Asian American appointed to the Workers’ Compensation Court in New Jersey;  Jerry Carbo, Esq.  an Associate Professor of Management at the Grove College of Business at Shippensburg University, Pennsylvania, who has researched and  written  about workplace bullying.; Catherine Mattice.  who runs the consulting business, Civility Partners, LLC, which specializes in helping organizations realize positive workplace cultures; and The Honorable Stephen Tuber is a retired Judge of the New Jersey Division of Workers’ Compensation – 1981 – 2009).

 

Good Jobs Replaced with Temp Work

One sector of the labor market is booming but there isn’t much cause for celebration.

 The U.S. Department of Labor recently reported that the number of  “temps”  in the United States has jumped more than 50% since the recession “officially” ended four years ago to nearly 2.7 million — the largest number since 1990.

Temps are temporary workers who typically receive low pay, few  (if any) benefits and scant job security.  Needless to say, temps are seldom in a position to demand decent working conditions and, of course,  don’t qualify for unemployment compensation when they are dumped by the employer.

The number of Americans in the tenuous temp workforce rises to almost 17 million when you factor in freelancers, contract workers and consultants. That’s about 12 percent of the labor force.

Careerbuilder, the internet jobs web site, reports there are 17 job areas where temp work is growing fastest, including team assemblers, office clerks, home health aides, and maintenance and repair workers.

Somewhat surprisingly, the CareerBuilder list includes some sectors that rarely used temps in the past, including computer programs, accountants and auditors, registered nurses, electricians and business operations specialists.

 An Associated Press survey of 37 economists in May found that three-quarters thought the increased use of temps and contract workers represented a longstanding trend.

Last year, this blog reported on a study by the Center for Economic and Policy Research (CEPR) that found fewer than a quarter of American workers have a “good job” today compared to the past, largely because of policy decisions that have undercut labor.

 According to the CEPR study,  Where Have All the Good Jobs Gone, a good job is defined as one that pays at least $37,000 per year, has employer-provided health insurance and an employer-sponsored retirement plan.

 The CETR blamed the decline in good jobs on policy decisions, rooted in politics, that have resulted in a drastic loss of workers’ bargaining power and the restructuring of the labor market since the end of the 1970s.

Readers are encouraged to visit ProPublica, a web site featuring journalism in the public interest, to read more about the treatment of temps in American workforce.

CareerBuilder:1 IN 4 Workers Bullied

This is one of the largest surveys to date and it provides still more evidence of the pervasiveness of unaddressed bullying in the workplace and the devastating impact that it can have upon the target and the employer. Other surveys have found a higher percentage, including the 2010 Z0gby International Survey, in which 35% of workers said they  eexperienced bullying firsthand .- PGB

Twenty-Seven Percent of Workers Bullied 

April 20, 2011 – A  CareerBuilder survey   of 5,671 U.S. workers reveals that more than one in four (27 percent) workers have felt bullied in the workplace, with most neither confronting nor reporting the bully.

The most common bully? The boss.

According to survey results, 14 percent of workers felt bullied by their immediate supervisor, while 11 percent felt bullied by a co-worker.  Seven percent said the bully was not their boss but someone else higher up in the organization, while another 7 percent said the bully was their customer.

 Bullying reports by gender and age

  • Comparing genders and age groups, the segments that were more likely than others to report feeling bullied were women, workers ages 55 or older (29 percent), and workers age 24 or younger (29 percent).
  • Women reported a higher incidence of being treated unfairly at the office.  One-third (34 percent) of women said they have felt bullied in the workplace, compared to 22 percent of men. Of course, this doesn’t mean fewer men are bullied, necessarily — just that fewer men report it. And, according to research by organizational behavior and leadership expert Denise Salin, women are more likely than men to self-label as a target of bullying.
  • Workers ages 35 to 44 were the least likely to report feeling bullied, with only one in four doing so … .

When asked to describe how they were bullied, workers pointed to the following examples:

  •      My comments were dismissed or not acknowledged (43 percent).
  •     I was falsely accused of mistakes I didn’t make (40 percent).
  •     I was harshly criticized (38 percent).
  •     I was forced into doing work that really wasn’t my job (38 percent).
  •     Different standards and policies were used for me than other workers (37 percent).
  •     I was given mean looks (31 percent).
  •     Others gossiped about me (27 percent).
  •     My boss yelled at me in front of other co-workers (24 percent).
  •     Belittling comments were made about my work during meetings (23 percent).
  •     Someone else stole credit for my work (21 percent).

 What are companies doing to combat this workplace bullying?

Twenty-eight percent of workers who were bullied brought the situation to a higher authority by reporting the bully to their Human Resources department. While 38 percent of these workers stated that measures were taken to investigate and resolve the situation, the majority of workers (62 percent) said no action was taken.

…. workplace bullying …  seems to be prevalent in organizations that support, accept or allow such behavior, or where employees feel that they can “get away with it” or where it is accepted as part of a “tough” climate.” Even worse, new employees and managers can become socialized into treating bullying as a normal feature of working life.