Tipping Point for Age Discrimination in Hiring?

*Unfortunately, in October 2016 the full U.S. Court of Appeals for the 11th Circuit in Atlanta overturned the three-judge panel in the case of Villarreal v. Reynolds Tobacco and ruled that the Age Discrimination in Employment Act does not cover job applicants. Ed.

** In the case of Rabin v. Price Waterhouse Coopers, a federal judge in San Francisco in February 2017 rejected the precedent of the 11th Circuit (see above) and ruled that the ADEA does permit disparate impact lawsuits on behalf of job applicants. This creates an effective split in the federal circuits, which could encourage the U.S. Supreme Court to resolve the difference.

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.

Corporations Point to Age Discrim. in Hiring by Feds

You might think it would be an embarrassment to our nation’s largest employer – the federal government – that corporate America is defending age discrimination in hiring by pointing out the U.S. government engages in the same behavior.

Most recently, the Equal Employment Advisory Council (EEAC), an association of America’s 250 largest corporations, filed a friend-of-the-court brief in an age discrimination case in which it opposed allowing older job applicants to file disparate impact lawsuits challenging broad-based discriminatory hiring practices.  If they are allowed to do so, the EEAC warns, numerous federal programs “most certainly will be impacted… ”

The EEAC goes on to cite various federal training, education and hiring programs that are closed to older workers, including the AmeriCorps National Civilian Community Corps, a residential program open to individuals between the ages of 18 and 24 who perform team-based national and community service, including disaster response and environmental stewardship. Members receive $4,000 for ten months of service, health benefits, $400 a month to pay for childcare and an educational award of $5,730.

Come to think of it, why can’t a 40-year-old join the Corps and dedicate a year of his/her life to community service for the same amount of remuneration?

Last May, the U.S. Chamber of Commerce filed a friend-of-the-court brief in which it defended age discrimination in hiring by noting that even the U.S. Equal Employment Opportunity Commission (EEOC) does it. 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. The  EEOC program appears to have a disparate impact upon older workers because the vast majority of  law school students and graduates are under the age of 40.

The  EEOC is the federal agency that enforces the Age Discrimination in Employment Act of 1967 (ADEA). [Read more…]